By Aidan Coyne
Lost in last week’s flood of stories covering the recent midterm elections was the decision of a 6th Circuit Federal Court of Appeals to uphold gay marriage bans in four different states: Michigan, Ohio, Tennessee, and Kentucky. While the Supreme Court famously overturned the national gay marriage ban within the Defense of Marriage Act, or DOMA, in last year’s United States vs. Windsor, it also failed to explicitly rule that homosexuals had the positive right to marry. The lack of such a ruling has led some states to defend the bans on gay marriage that they had previously instituted, and after many judicial losses, opponents of same sex marriage finally look like they have achieved something of a victory.
But the reality isn’t so simple. In fact, the one thing this appellate court decision guarantees is a final decision, once and for all, by the Supreme Court on whether the United States considers same sex marriage a right. This proposition should make both sides somewhat nervous and hopeful. Advocates and supporters of same sex marriage can take heart in both the ruling and language used by the Court in the Windsor case, in which not only did the “swing voter” Justice Anthony Kennedy vote in favor of eliminating the statute banning gay marriage, he also wrote suggesting that “irrational animus” was at the basis of much of the legal framework opposing gay marriage. On the other hand, the current Court, headed by Bush appointee Justice John Roberts, is rightfully considered a conservative one. But as previously noted, the fifth conservative vote on the bench is Justice Kennedy, who has a much more libertarian take on social issues than on other areas of law.
Why is this specific case so important in the ongoing legal battles over same sex marriage? Prior to the 6th Circuit’s decision, the trend of judges around the country was increasingly in favor of overturning gay marriage bans. However, the 6th Circuit’s ruled in favor of upholding the four bans in a narrow 2-1 decision, with Judge Jeffrey Sutton writing for the majority. Sutton’s argument essentially hinges on the case that in a democratic nation like the United States, it is the role of the people to institute social change through the legislature rather than the judiciary. This argument, although more elegantly stated, is basically a refined version of the political refrains commonly levied against “activist judges” who are perceived to rule against the will of the people.
Simply put, Judge Sutton’s argument is wrong. Regardless of the admittedly tricky proposition of determining what constitutes a right, it is clear that a right cannot and should not be allowed to be denied to a minority group on the whim of the majority. This is the very role of the judiciary, to act to uphold what is lawful and strike down what is unlawful, even if this is unpopular with either the people or the politicians. This debate is not a new one, dating all the way back to when Federalists and Anti-Federalists fought fiercely over the structure of government, but that battle was won and Judge Sutton’s position lost.
And yet, due to the Judge’s ruling, all Americans are bound to see a new bit of history be made in the next year, with the issue of same sex marriage to be decided once and for all.