It's a truism that we talk about here often, especially in the context of marriage equality, and the vacuous arguments made by exclusivists that the "will of the people" must be respected. Lay aside the fact that the "will of the people" becomes "tyranny of the majority" when the former conflicts with the complaining cohort's preferred outcome. The point is, and must be repeated, that in this country, in a free country, under our constitutional system, we do not put people's civil rights up to a vote. We do not allow a majority to decide which rights a minority shall or shall not have.
As I discussed in my previous diary, this whole business about the "definition of marriage" is a red herring used by exclusivists to gloss over and distract from the very real harm that exclusivity inflicts on gay people and couples. It absolves them of any need to consider that harm, let alone whether that harm must be justified or whether it actually is justified.
I still can't get over how unconscionable the Sixth Circuit's reasoning is in upholding marriage exclusivity, on the grounds that the states can "define marriage" however they like in accordance with the wishes of their respective electorates, without even taking into consideration whether the "definition" they come up with, and/or the act of coming up with that definition, causes anyone any harm. That the majority opinion could go on for 35 pages without paying anything more than lip service to the plight of those whose rights to liberty and the pursuit of happiness are being denied by this "definition" is staggering to me, not only in its implicit cruelty but in its obtuseness.
What the court basically did here was create a very clever -- and incredibly dangerous -- loophole for the truism that we don't vote on other people's rights. According to this court, the states in question weren't voting on other people's rights, they were voting on the definition of a word (or, if you want to be more generous, the definition of a civic/social institution). Since there was no reason, according to the court, to call their motives into question, or to not give them the benefit of the doubt, the decision to "define," the act of "defining," and the "definition" itself, were all reasonable. States, and their electorates, should be allowed to define words and define their respective social institutions however they see fit.
The obvious problem is that the court implicitly draws a distinction that doesn't exist. We can't vote on other people's rights, but we can vote on the "definition" of things. As if there is actually a difference between doing the latter and doing the former; as if doing the latter does not have the effect of doing the former. This court has announced that we can vote on other people's rights, as long as we recast what we're voting on as something benign and abstract, like the "definition of marriage."
The Supreme Court has already held that marriage is a fundamental right (which the Sixth Circuit basically sweeps under the carpet with a bit of linguistic legerdemain). Of course, neither the Constitution nor constitutional law defines precisely what "marriage" is. But nor does it define what "speech" is. What "religion" is. What "assembly" is. What "arms" are.
Could a state, by a vote of its citizens, "define" "speech" to mean "words spoken or written by straight people"? Or "by white people"?
Could a state, by a vote of its citizens, "define" "religion" as "Christianity"? Or as "any faith, sect or denomination other than Islam"?
Could a state, by a vote of its citizens, "define" "arms" as "rubber-band pea shooters"? Or as "muzzle-loaded single-fire rifle muskets of 18th-century design or manufacture"?
Unrealistic hypotheticals are seldom useful to advance a discussion or to illustrate a point, but in this case I think they are. The Sixth Circuit asked itself the appropriate and fairly-formulated question:
Does the Fourteenth Amendment to the United States Constitution prohibit a state from defining marriage as a relationship between one man and one woman?
...and answered that question in the negative by focusing on the words "defining marriage," instead of on what the Fourteenth Amendment actually prohibits, viz., the deprivation to any person of due process or equal protection. The court did not ask or examine whether the state's act of "defining marriage" thusly deprives anyone of due process or equal protection. It only asked if the Amendment prohibited the act of definition, and to a lesser extent, the definition itself.
Here's another way of looking at it. When I first heard the idea of same-sex marriage, my first reaction was to ask "Why not?" and come up with nothing. Numerous courts have, albeit not in so many words, done the same thing. What this court did instead was to ask "Why not?" in response to the question, "Can a state define 'marriage' however it wants?" and come up with nothing. The court truly could not fathom any reason why a state can't "define marriage as a relationship between a man and a woman."
As I and the dissenting justice, Martha Craig Daughtrey, pointed out, the court took the very real, concrete, actual harm being inflicted on gay couples by exclusivity, and turned it into a purely abstract discussion about defining words. My hope, and everyone else's I imagine, is that the SCOTUS will not adopt this obtuse reasoning. Whether it intended to or not, the Sixth Circuit has opened an ugly can of worms here, signaling to the states that they can start putting people's rights up to a vote, and all they have to do is tell people that what they're voting on is nothing more than the "definition" of a word.