April Deboer and Jayne Rowse, plaintiffs in the Michigan marriage equality case.
Four federal appeals courts have ruled in favor of marriage equality since the Supreme Court struck down part of the Defense of Marriage Act. Thursday afternoon, a three-judge panel from the U.S. Court of Appeals for the 6th Circuit split with the 4th, 7th, 9th, and 10th circuits by
upholding same-sex marriage bans in Michigan, Ohio, Kentucky, and Tennessee.
Judge Jeffrey Sutton's opinion cites a number of rationales for continuing to discriminate in marriage rights, including that the appeals courts are bound by the Supreme Court's one-line refusal to hear a marriage equality case in the 1970 and that:
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. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.
Judge Martha Craig Daughtrey dissented in fabulous form:
The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it.
This decision makes it much more likely that the Supreme Court will accept a marriage equality case in the near future, given the split in opinions at the circuit court level.
