Well, looky here, the 6th Circuit Court of Appeals has decided to cram homophobia down everyone’s throats. Talk about judicial activism!
In a 2-1 decision, the three-judge panel — with the dissenter writing a most epic dissent, but we’ll get to that — ruled in DeBoer v. Snyder that it is perfectly fine and legal, and probably also good for the children, to ban marriage equality in Michigan, Ohio, Kentucky, and Tennessee. The court uses a lot of fancy legal jargon like “strict scrutiny” and “rational basis review” and lots of citations to lots of cases to make it look like the judges are just doing their jobs, but when you cut out all of that lawtalk, the basic premise of the court’s decision to overturn the lower courts’ decisions is that, as judges, they cannot possibly decide whether it is constitutional to discriminate against gay people for being gay. What are they — judges?
Pffft. Naw, man, in this capital-D Democracy, the one thing judges certainly cannot do is interpret laws to decide whether they are constitutional. That is for The People to decide.
Besides, when it comes to marriage equality, what’s the rush? It’s not like anyone is that hurt by discrimination, and even if they are, we should really think about the other people who are hurt by equality.
Nope, this is not a joke. Let’s dive in, shall we?
For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world.
Let’s skip ahead now to the lone dissenting voice of reason, Judge Martha Craig Daughtrey, who politely points out that, ahem, that argument is some kind of bullcrud:
There is not now and never has been a universally accepted definition of marriage. In early Judeo-Christian law and throughout the West in the Middle Ages, marriage was a religious obligation, not a civil status. Historically, it has been pursued primarily as a political or economic arrangement. Even today, polygamous marriages outnumber monogamous ones—the practice is widespread in Africa, Asia, and the Middle East, especially in countries following Islamic law, which also recognizes temporary marriages in some parts of the world. In Asia and the Middle East, many marriages are still arranged and some are even coerced.
But oh well, guess the majority forgot about that, because it sure does insist — over and over and over again — that up until about a decade ago, there was one definition of marriage, everywhere, for all time. And that is why the real question is whether the court has the authority to overrule The Voice Of The People, when The People have been homophobic bigots for all these millennia.
What we have authority to decide instead is a legal 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? […]
All seek dignity and respect, the same dignity and respect given to marriages between opposite-sex couples. And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?
Nice red herring there, yo, but again, we shall turn to the one lone voice of dissenting reason to respond to that question:
The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy.
Now that is a sick burn. Go on, lone voice of reason:
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.
The majority opinion then spends about 100 million words explaining why the Supreme Court has definitely not been clear about its position on whether marriage is a fundamental right. That DOMA case? That Windsor case? Meh. None of the justices on the Supreme Court said, “No, we are serious here, this discrimination is not okay anymore because it is the 21st century.” Ergo, the 6th Circuit cannot possibly construe the Supreme Court’s decisions — including its decision on Oct. 6, 2014, to not even bother hearing the petitions arising from several other circuits courts begging to pretty please let them pretty please keep their marriage inequality laws — to mean that seriously, for reals, it is time to end this nonsense. They are only simple country appellate judges, after all.
The opinion then declares that while the plaintiffs make plenty of arguments about why they should be considered citizens of these United States, entitled to the same rights and privileges as all the other citizens — and the lower courts said, “Yep, those are good reasons!” — the 6th Circuit does not think those are good reasons at all, no sir.
Not one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.
See, because what this is really about is the right of the people to decide that they do not want other people to marry each other. And the Constitution simply does not permit these lowly judges to seize that right out of the hands of the bigots. Besides, those bigots who voted to ban marriage equality might have had really super good reasons for doing so. And again, who are these judges to question their good intentions?
How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage? A State still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere. Even today, the only thing anyone knows for sure about the long-term impact of redefining marriage is that they do not know.
How indeed can they possibly think that just because people were all, like, “Ewwwww, gays, gross, let’s make ’em illegal!” these utterly powerless judges who have no authority whatsoever to decide anything should overrule the infinite wisdom of those bigots? What if the bigots are right? What if marriage equality destroys democracy and America and the family and the children? We have “only” had marriage equality in at least some parts of this country for a decade. It’s just too soon to know whether it might one day unleash hell on Earth.
Let’s see what the dissent has to say about that, shall we?
The second contention is that we should “wait and see” what the fallout is in the states where same-sex marriage is now legal. The majority points primarily to Massachusetts, where same-sex couples have had the benefit of marriage for “only” ten years—not enough time, the majority insists, to know what the effect on society will be. But in the absence of hard evidence that the sky has actually fallen in, the “states as laboratories of democracy” metaphor and its pitch for restraint has little or no resonance in the fast-changing scene with regard to same-sex marriage.
But, says the majority, even if marriage equality does not destroy everything, it’s not unreasonable to think of the children! Yeah, because that trope hasn’t gotten incredibly old yet.
Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means. People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative.
Those arguments — that marriage equality is bad for children — have been debunked by pretty much every single person who can read at a third-grade level. But, nonetheless, according to the majority, we must at least consider that the bigots who were simply trying to protect “traditional marriage” and The Children are real actual people, and they have feelings too, you know, so we should not dismiss their reasoning as mere bigotry.
Just as gay individuals are no longer abstractions, neither should we treat States as abstractions. Behind these initiatives were real people who teach our children, create our jobs, and defend our shores. Some of these people supported the initiative in 2004; some did not. It is no less unfair to paint the proponents of the measures as a monolithic group of hate-mongers than it is to paint the opponents as a monolithic group trying to undo American families.
Yeah, poor bigots. Let’s watch out for their feelings for once, m’kay? And besides, the court is at least vaguely aware that discrimination against gays is, like, kind of unfair maybe?
We cannot deny the lamentable reality that gay individuals have experienced prejudice in this country, sometimes at the hands of public officials, sometimes at the hands of fellow citizens. Stonewall, Anita Bryant’s uninvited answer to the question “Who are we to judge?”, unequal enforcement of antisodomy laws between gay and straight partners, Matthew Shepard, and the language of insult directed at gays and others make it hard for anyone to deny the point.
But it is ridiculous to conclude that just because there is a long history of homophobia and discrimination, the motivations of the fine citizens who voted to amend their state constitutions to specifically encode homophobia and discrimination were doing so for less-than-noble reasons. What does our history of discrimination have to do with anything anyway?
This order of events prevents us from inferring from history that prejudice against gays led to the traditional definition of marriage in the same way that we can infer from history that prejudice against African Americans led to laws against miscegenation.
Oh. Well, guess you can’t argue with that, huh? Besides, it is only because of rampant judicial activism that well-meaning and not-necessarily-bigoted citizens have been forced to endure living among gay couples.
Freed of federal-court intervention, thirty-one States would continue to define marriage the old-fashioned way.
The old-fashioned way. You know, one man, one woman, one woman’s father selling her to her rapist for some frankincense. Or maybe not quite that old-fashioned. Still, though, the judges recognize the possibility that gay couples “deserve better.” However, they need to find some other way to get what they deserve, because turning to the courts to protect their rights sure is a dumb way to go about ensuring your rights are protected. Maybe they should try to get themselves some “earned victories through initiatives and legislation and the greater acceptance that comes with them.”
Sigh. If only there were some way the judges could give these plaintiffs a hand, but alas, that is not their job.
Isn’t the goal to create a culture in which a majority of citizens dignify and respect the rights of minority groups through majoritarian laws rather than through decisions issued by a majority of Supreme Court Justices? It is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage.
Only some arrogant prick in a robe would think he understands the Constitution better than some arrogant non-robed prick who voted “No On The Gay.” And the arrogant pricks of the 6th Circuit are certainly not about to assume, arrogantly, that they are smarter than your average idiot citizen who probably had real good reasons for voting for discrimination. Thus, because they are only dumb powerless judges, they must decide that they have no right to make such decisions and let the citizenry work out these issues all on its own … somehow. Whatever. Who knows? Not them. They are only judges.
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. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.
For these reasons, we reverse.
If you are incredibly depressed at this point that the majority of judges on the 6th Circuit essentially declared themselves too stupid and powerless to make decisions, take solace in knowing there is at least one judge on the 6th Circuit who understands her job description:
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.
This decision all but guarantees that the issue will make its way to the Supreme Court. The 9th Circuit’s decision in October — which is a much better read, and you should definitely read it, it is excellent — came to basically the exact opposite conclusion. Of course Gay-Americans have the same rights as Not-Gay-Americans. And the Supreme Court has said as much. And hello, Equal Protection? And hello, 21st century? And hello, DUH!!!
So now we wait. And hope that Justice Scalia decides to retire soon.