Court shows more discretion than valor on gay marriage

November 7, 2014

“The better part of Valour, is Discretion” – Falstaff in Shakespeare’s Henry IV, Part I

In a move defying recent trends, the 6th Circuit U.S. Court of Appeals yesterday upheld gay marriage bans in Kentucky, Michigan, Ohio and Tennessee.  It also ruled that Ohio, Tennessee and Kentucky are not required to recognize gay marriages that take place in other states. Coming in the same week that courts in Missouri and Kansas ruled such prohibitions unconstitutional, the 6th circuit was the first ruling by a federal appeals court to uphold bans on same-sex marriage. 

In his majority 2-1 ruling, Judge Jeffrey Sutton said plaintiffs favoring same-sex marriage had not made the case why courts should intervene instead of leaving the matter to state legislatures. “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,” he said. Instead, he wrote that that courts prefer to defer to “the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories.”

Sixth Circuit Judge Martha Craig Daughtrey, in a pointed dissent, noted that “Instead of recognizing the plaintiffs as persons suffering actual harm as a result of being denied the right to marry where they reside, or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court.”

Gay marriage activists now expect the issue to be decided once and for all by the Supreme Court, which recently struck down the Federal Defense of Marriage Act.

As this Reuters map shows, magnitude matters here. With the exception of Florida and Texas, the jurisdictions with the most same-sex households also extend the right for gay couples to marry. 

In sidestepping the issue, the 6th Circuit judges offered a less than heroic rationale, but by effectively forcing the Supreme Court to take up the issue they facilitate the definitive resolution that both sides desire—a uniform map. Falstaff would be proud.

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