Court Monitor

Victory for Traditional Marriage Sets the Stage

The U.S. Supreme Court may have thought it could duck the demand by liberal groups for a constitutional right to same-sex marriage. In October, the High Court denied certiorari on a petition for it to overrule decisions declaring that same-sex marriage is in the Constitution.

But barely a month later, the U.S. Court of Appeals for the Sixth Circuit halted the momentum against same-sex marriage. DeBoer v. Snyder, 2014 U.S. App. LEXIS 21191 (6th Cir. 2014). Judge Jeffrey Sutton, a Republican appointee to the bench, wrote the 2-1 panel decision rejecting the use of judicial supremacy to impose same-sex marriage.

"Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us -- just two of us in truth -- to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee," the Court ruled.

It was fortuitous that Judge Sutton was assigned at random to be on this three-judge panel. There are 15 active judges on that Circuit, plus a vacancy that President Obama could try to fill. Obama has already handpicked and placed two judges on that Court, and an Obama-majority panel would have almost certainly resulted in another supremacist decision imposing same-sex marriage.

But led by Judge Sutton, the panel discredited the notion that each state must accept any and all marriages performed in other states that have a different view of what marriage should be. "States have always decided for themselves when to yield to laws of other States. Exercising this power, States often have refused to enforce all sorts of out-of-state rules on the grounds that they contradict important local policies." For example, Ohio currently declines to recognize some heterosexual marriages performed in other states.

This panel decision is not, however, much of a defense of traditional marriage and the original meaning of the Constitution. Issued two days after the midterm elections, this decision implicitly praised states that have embraced same-sex marriage by changing their laws without judicial intervention, and the Court even welcomed more of that. Perhaps this decision was written with the swing vote of Supreme Court Justice Anthony Kennedy in mind, by emphasizing the value of allowing states to reach their own conclusions through their own political processes rather than creating a new constitutional right.

For now, a conservative interpretation of the Constitution has prevailed in the Sixth Circuit. This establishes a "Circuit split" -- a disagreement among different U.S. Courts of Appeals -- which essentially guarantees that the U.S. Supreme Court will grant cert. and pick one side or the other. The ACLU filed a petition for cert.just eight days later, asking the Supreme Court to review and reverse the decision before its current term ends next June.