The U.S. Court of Appeals for the Sixth Circuit has become the first federal appellate court to uphold marriage exclusivity, in a 35-page opinion by Circuit Judge Jeffrey Stuart Sutton.
Circuit Judge Martha Craig Daughtrey penned a 21-page dissent.
I may be writing more below the fold, or in a separate diary, later as I review and analyze this decision and the dissent.
The opinion appears to focus on "change"; indeed, it opens by stating rather bluntly, "This is a case about change--and how best to handle it under the United States Constitution." (Op. at 7.) Specifically, whether there must, can and/or should be a "change" to the "definition of marriage" and how best to go about effecting any such "change." The Court defines the legal question before it thusly:
Does the Fourteenth Amendment to the United States Constitution prohibit a state from defining marriage as a relationship between one man and one woman?
That's a fair formulation, and nearly every court that has addressed that question thus far has answered it in the affirmative. A state cannot "define" marriage that way, because doing so infringes on the fundamental rights to due process and/or equal protection of homosexual individuals and/or same-sex couples. The Sixth Circuit here breaks with its brethren and rules that the state
can "define" "marriage" in an exclusionary or discriminatory way, and implies -- without really saying -- that doing so does not violate anyone's civil rights.
Where I think this decision goes terribly wrong, and again this is based on only an initial, perfunctory reading, is that it focuses on that "definition" and the state's "right" to "define" "marriage" a certain way, rather than on the individual rights and personal liberties of actual living, breathing human beings. Part of this is because the court only applies rational-basis review, meaning it (properly) gives the state, not the plaintiffs, the benefit of the doubt as to the rationality of its "definition" (meaning, the definition itself and the act of defining). But to focus this issue on the act of "definition," or the "definition" (or "re-definition") of the word "marriage," has always been a red herring thrown out by exclusivists to take the focus off of the very real people and very real lives that are affected by marriage exclusivity. This court, unfortunately, took the bait.
Exclusivists are always accusing supporters of marriage equality of trying to "re-define marriage," which they say the latter have "no right" to do. Some that I've conversed with have even made it sound like the word "marriage" itself has rights, viz., a right to be "defined" a certain way or to mean a certain thing, and that we are somehow depriving that word of its "rights." (As a corollary, some exclusivists claim a "right" to have "marriage" be "defined" a certain way or to mean a particular thing, and that to "re-define" it to mean something else would violate their religious liberty.) This characterization is, and always has been, wrong. No "re-definition" of "marriage" -- indeed, no definition of "marriage" -- is needed in order that the institution, viz., the nominal civic/legal status of "married" and "spouse," include same-sex couples. The only reason to even invoke the "definition" of "marriage" or to use it as the fulcrum of the debate, is to justify exclusivity. Definition implies exclusion, not inclusion.
New York's Domestic Relations law, for example, "defines" "marriage" only as "a civil contract, to which the consent of parties capable in law of making a contract is essential." (NY DRL § 10.) The state legalized same-sex marriage not by "re-defining" the word "marriage," but by adding § 10a(1), which states that "[a] marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex." (emphasis added)
I don't want to get into a whole dissertation about domestic-relations laws here. My only point is to show that the "definition" of "marriage," as far as the law is concerned, is a distraction from the real question of who may be the parties to a legal marriage, more specifically, whether the parties to a legal marriage must be of the opposite gender or may be of the same gender. Who may be designated as "married," as someone's "spouse," by the state. This "definition of marriage" argle-bargle (forgive the allusion) is purely an abstract issue, and a distraction from the real lives of the actual people affected by it.
The Sixth Circuit's opinion, on first reading, appears to avoid those key questions. More disturbingly, it appears to have very little to say about the rights of actual, living, breathing gay individuals and couples; it seems concerned with practically everything else but that. Like many exclusivists, it does not seem at all bothered by this abstract "definition" of a word having the effect of denying civil rights to an whole category of people, nor by the former being more important than the latter.
The court comes back to the "change" theme at the end of the opinion, saying essentially that it's better to effect "change" through democratic processes than judicial intervention. But again, the only "change" the court is concerned about is the "definition of marriage" -- a purely abstract concept. It seems unfathomable to me that the "definition" of a word could be so important as to outweigh the actual rights, freedom, liberty -- and happiness -- of an entire segment of the population.
I'm now reading the dissent, and Judge Daughtrey appears to agree with me:
In the main, the majority treats both the issues and the litigants here as mere abstractions. Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry ... my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of ... voters[.]
(Op. at 43 (Daughtrey, J., dissenting).)
Judge Daughtrey does a nice job dismantling the "definition of marriage" argument on pages 57-60. She sums up the majority's opinion as essentially two aphorisms: "let the people decide" and "give it time." (Op. at 60 (Daughtrey, J., dissenting).) She also makes what should have been the obvious point that the majority completely missed: that civil rights, viz., whether person [X] or minority group [Y] has a right to [Z], is not something we put to a vote under our Constitutional system. (See Op. at 61 (Daughtrey, J., dissenting).)
The majority cleverly sidestepped that fundamental truth by making the object of the verb "decide" be "the definition of marriage," not "the rights of gay people and couples." That, I think, is what makes this such a risible decision. The court is basically saying that we can put civil rights up to a vote, by simply substituting some abstract concept like the "definition of marriage" as the thing we're nominally voting on. Indeed, the court is saying that we must put civil rights up to a vote, which the dissent points out rightly is a direct contradiction of the Fourteenth Amendment and its related jurisprudence.
Judge Daughtrey ends her dissent with this:
If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.
(Op. at 63-64 (Daughtrey, J., dissenting).)
Again, I can't help but think that the gist of this decision is that a state can inflict harm on its citizens by simply "defining" a word, or by letting people vote on that word's "definition." The court would rather gay people and couples suffer actual harm than upset the state-sanctioned, voter-approved "definition" of a word.