"Joy and pleasure are as real as pain and sorrow and one must learn what they have to teach. . . ." -- Sean Russell, from Gatherer of Clouds

"If you're not having fun, you're not doing it right." -- Helyn D. Goldenberg

"I love you and I'm not afraid." -- Evanescence, "My Last Breath"

“If I hear ‘not allowed’ much oftener,” said Sam, “I’m going to get angry.” -- J.R.R. Tolkien, from Lord of the Rings

Friday, November 07, 2014

The Decision We've Been Waiting For

The Sixth Circuit has upheld marriage bans in Michigan, Ohio, Kentucky, and Tennessee. The majority opinion, written by Judge Jeffrey Sutton, is, quite frankly, garbage, starting with Sutton's assumption that Nelson v. Baker is still controlling -- which only two other courts have found to be the case, a district court in Louisiana and a district court in Puerto Rico.

Judge Martha Craig Daughtrey's dissent nails it in the first paragraph:
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.

The usual suspects are nearly wetting themselves from joy -- Brian Brown, somehow, didn't claim credit, while Tony Perkins simply hauled out his fill-in-the-blanks press release, particularly praising the "who should decide" language in Sutton's opinion -- but I suspect this won't last long -- the ACLU has announced that it will appeal the decision directly to the Supreme Court.

There's a lot of speculation on how the Supreme Court will fall on this one -- it's a foregone conclusion that they'll hear the appeal, since there is now a split in the circuits -- with the major focus being on Anthony Kennedy, because of his stress on states' rights in Windsor. I think there's no real problem there: it's called the Fourteenth Amendment, which expressly subjects state laws to the authority of the federal Constitution. And it's a basic principle of American law that constitutionally guaranteed rights -- of which marriage to the person of one's choice is one -- take precedence over state laws, no matter whether passed by legislatures or the voters themselves. The people don't get to vote on the civil rights of minorities, a point that Sutton seems to have missed completely. If nothing else, Romer v. Evans is the stake in the heart of the states' rights claims on this question, and if I remember correctly, Kennedy wrote the majority opinion in that case.

So, it's almost guaranteed the Supreme Court will hear the appeal, and I don't think it's outside the realm of possibility for a 6-3 decision in our favor.

And if you feel like punishing yourself, you can read Sutton's majority opinion here, but as a reward, you get to read Daughtrey's dissent, starting on page 43.

No comments: