Before the Supreme Court agreed to hear the marriage equality cases that will be argued next Tuesday,
three consecutive appellate courts had ruled that same-sex couples had a constitutional right to marry. Then came the 6th Circuit ruling that denied that right and forced the Supreme Court's hand.
So next week, the hight court will consider whether it agrees with the reasoning of three separate appellate courts, or the outlier opinion, written by George W. Bush appointee Judge Jeffrey Sutton.
"It's an ideal piece of judicial craftsmanship," said Ryan T. Anderson of the Heritage Foundation.
Ahh ... an imprimatur from Heritage—a sure indication that it's anything but ideal. But here's
a quick look at
Sutton's arguments.
"When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers," Judge Jeffrey Sutton wrote in the ruling.
That's not an idea, it's a fact. Heroes in these "change events" have often been judges and lawyers. That's why we have a system of checks and balances.
It is "dangerous and demeaning," Sutton wrote, to the citizenry to assume that only judges "can fairly understand" the arguments for and against same-sex marriage.
"Isn't the goal to create a culture in which a majority of citizens dignify and respect the rights of minority groups?" he asked in the opinion joined by Judge Deborah L. Cook, also a Bush appointee.
Yes. That is the goal, not that you're helping. No one is saying people can't "fairly understand" the arguments, but they are not tasked with deciding whether something is a fundamental freedom. Judges are.
For more of Sutton's sound reasoning, head below the fold.
"By creating a status (marriage) and by subsidizing it (e.g. with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring."
Even if we accept this line of reasoning, we have yet to see any court prove that allowing same-sex couples to marry will necessarily reduce the number of different-sex couples who want to marry and have kids.
Sutton pushes back on any suggestion that those who oppose same-sex marriage have negative feelings about gay and lesbian couples. He said that ballot initiatives banning same sex-marriage were not driven by hostility but were passed by "real people who teach our children, create our jobs, and defend our shores."
Passed against "real people who teach our children, create our jobs, and defend our shores."
The real must-read from the 6th Circuit was the dissent, written by Bill Clinton appointee Judge Martha Craig Daughtrey, who "dismissed the opinion as an 'engrossing TED talk' and a 'largely irrelevant discourse on democracy and federalism.'"
Daughtrey said that Sutton failed to see the plaintiffs as individuals "suffering actual harm."
"These plaintiffs are not political zealots trying to push reform on their fellow citizens, " she wrote, but committed same-sex couples seeking equal status.
Her harshest language was for Sutton's premise that the decision should be left to the democratic process.
"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."