The issue of same-sex marriage and equal rights has been something of a roller coaster ride, politically, socially, legally, and unquestionably emotionally for many couples in the U.S. First, the Supreme Court left the issue in the hands of state governments, voters, and lower courts, ruling the Defense of Marriage Act unconstitutional, but not requiring states to allow equal right to marriage. From there, states went on to pass their own legislation, which was eventually challenged at the local, state, and federal level, bringing the issue once more to the Supreme Court level last month.
However the court chose, at the time, not to hear the case, effectively legalizing same-sex marriage in many regions across the U.S., a major success on the side of social liberals, while still managing to make it a state issue as so many conservative interests have said it should be. Now though, the Court may be hearing the issue after all after the Sixth Circuit appellate court ruled against a constitutional argument in favor of same-sex marriage. But whether that’s good or bad news for marriage equality proponents is worth considering.
When would we hear a ruling?
The argument from this lower court is significant in that it offers a well formed argument to place before the court, and could lead to a national ruling on the issue which for a time looked like it would be passed over. Dale Carpenter, a professor of law at Yale, estimates that a ruling could be expected anywhere from June 2015 to June 2016, according to the Washington Post. Having a national ruling on the constitutionality of same-sex marriage could open the door to a more universal, fair, and equal legal structure for LGBT Americans. On the other hand, that’s only if the court rules in favor of striking down the marriage ban in opposition of the lower court’s ruling, which presently conflicts with those of surrounding regions.
The lower court’s view
The lower court’s ruling, written in a majority opinion by Judge Jeffrey Sutton, considers the issue as one of how same-sex marriage should be legalized rather than if it should be legalized, which is an interesting perspective to take before the court, one more likely to be considered, and perhaps one less likely to be ruled on in favor of same-sex marriage proponents.
His ruling lists the 19 states (plus D.C.) which have allowed for same-sex marriage, and the federal court of appeals decisions that have forced other states to allow it based on the Fourteenth Amendment, claiming that “what remains is a debate about whether to allow the democratic process begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples.”
Sutton argues that the opinion of judges on whether same-sex marriage should be allowed are not what will count, but rather their legal consideration of the Fourteenth Amendment’s application, going on to explain the differing viewpoints in each state. “If assessing the motives of multimember legislatures is difficult, assessing the motives of all voters in a statewide initiative strains judicial competence,” writes Sutton.
In opposition to Sutton’s remarks, Judge Martha Craig Daughtrey wrote the single dissent, calling his opinion “mere abstractions” that might make for “an engrossing TED Talk,” arguing that “[i]f we as 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.” She argues that an “independent judiciary” is a necessity, rather than a pitfall.
The question is whether or not the Supreme Court will side with the slower solution which errs on the side of legal caution, or the decisive blow to inequality. With DOMA, it was the former, but the nation has changed a great deal since then.
Ultimately, same-sex marriage is headed toward nationwide implementation; polls and cultural indicators show that views on gay marriage have been changing socially, politically, and legally over the course of the last 50 years, and even the last few decades. So ultimately, should the Supreme Court rule in favor of state’s rights over civil rights, marriage equality is highly likely to be implemented in the mid-West eventually, it will simply be set back, a delay, and a slower process overall.
Follow Anthea Mitchell on Twitter @AntheaWSCS