By Ann Rostow
Circuit Split!
As you surely know by now, on November 5, a 2-1 panel of the U.S. Court of Appeals for the Sixth Circuit ruled against marriage equality in Michigan and Kentucky, and slammed marriage recognition in two other states. Hmmm. Sometimes, I don’t know if I really want something to happen until it does. Only then can I tell whether I’m pleased or disturbed. And I feel a little pleased by our loss at the Sixth Circuit, just as I felt a little disturbed when the Supreme Court ducked review of all our marriage cases last month.
So how can I welcome a condescending antigay opinion that blocks marriage equality in four states, while frowning over a decision that opened the door to same-sex couples in 16 others? It’s because I want the High Court to consider the right to marry and I want them to do it now. A few days ago, that seemed unlikely. Now, with the U.S. Court of Appeals for the Sixth Circuit on record in favor of marriage discrimination, it seems possible.
Within a day or two of the contrarian ruling, all the advocates for the various couples involved in the suits reportedly decided to appeal directly to the High Court. Theoretically, they could have appealed to the full Sixth Circuit, but they would probably have lost before this conservative court, and more importantly, they would have wasted a year or so in needless litigation. A prompt appeal to the Supremes, by contrast, could allow marriage equality to reach the Court this session.
But could the justices sit on these petitions long enough for the matter to languish, and wind up on the 2015/2016 docket instead? I wouldn’t think so, but then again, who among us has made a dime betting on the Supreme Court’s maneuvers lately? Linda Greenhouse?
Interestingly, the door is now open for our opponents at the Ninth Circuit to petition the Supremes as well. Idaho has already asked the full Ninth Circuit to rehear its October 7 ruling in favor of marriage equality. Why not go straight to the top now that the long awaited “circuit split” is upon us? For that matter, any one of the marriage cases now pending before the Fifth or Eleventh Circuits could be tossed into the High Court stew even without an intermediate ruling. Check out SCOTUSblog for a rundown of the various scenarios.
A Matter of Opinion
In the course of the last year, we’ve seen dozens of federal courts expound on equality, fundamental rights, and the guiding principles of the Constitution on our behalf. We’ve also seen three opinions go the other way: two from lower courts in Louisiana and Puerto Rico, and now the majority opinion by Jeffrey Sutton out of Cincinnati.
The Louisiana decision was your run-of-the-mill anti-marriage opinion, circa 2001. In Puerto Rico, by contrast, the judge went on a long diatribe about Baker v Nelson, a one-line dismissal of a marriage case from the High Court in 1972 that most consider a legal anachronism.
Judge Sutton, in turn, has delivered a bizarre essay:
“This is a case about change—and how best to handle it under the United States Constitution,” Judge Sutton begins.
“From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen. That would not have seemed likely as recently as a dozen years ago. 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.”
Say what?
I provided that entire first paragraph because it encapsulates many of the irregularities of the opinion. Much of Sutton’s polemic concerns the advantages of democratic change as opposed to legal authority. He writes about tradition, about the slow progress of society, about the rough and tumble of achieving democratic consensus versus the cold logic of the law. And throughout the 45-page ruling, Sutton’s seemingly innocuous commentary betrays deep-seated bias. Marriage is a tradition “measured in millennia,” adopted by “all governments and major religions of the world?”
But, hello? These are lawsuits. These are specific constitutional challenges. These cases are not about “change.” They are about the legal rights of two women in Michigan. Can they marry? Can they adopt their three children? They are about the status of married couples who now live in Tennessee, Kentucky and Ohio. Are they to become strangers under the law once they cross state lines? When one dies, will the other be listed on his death certificate? In Sutton’s view, these individuals should stay out of the courthouse and instead start a decade-long political process to amend their state constitutions.
Sutton continues, pointing out that the aforementioned Baker v Nelson is still in force, even though the High Court effectively legalized marriage in over a dozen states a month earlier. And just because the Supremes allowed those marriages to go forward, he writes, doesn’t tell us whether marriage equality is rightly the domain of the courts or the electorate. It doesn’t? That’s flat out wrong. More importantly, why should the sixth circuit be musing about this false conflict to begin with.
As for the appellate courts that ruled in favor of marriage equality over the last few months, Sutton notes that they all employed slightly different constitutional analyses, as if the lack of four identical opinions somehow tarnished the conclusions of all.
With a pretentious undertone, Sutton goes on to reject several of the arguments in favor of equality with simplistic or tangential rebuttals. He observes, for example, that the Civil War-era drafters of the 14th Amendment never imagined that the equality and due process provisions would be directed towards same-sex marriage. I mean, COME ON!
I usually don’t use capital letters. I think it shows a lack of imagination, a poor mastery of language. Surely a good writer can come up with the actual words that would convey the strong emotions that capital letters are aiming to suggest. But when I wrote that a minute ago, I was screaming in my own mind. Literally.
For Christ’s sake, the man goes on to smugly ask his readers whether or not we think the Loving Court would have ruled in favor of an interracial gay couple? No, we don’t. Nor would the Dred Scott Court have ruled in favor of the Lovings. Times change, Judge.
The Beat Goes On
I could go on at length about Mr. Sutton, but I won’t. I should note, however, that the dissenting judge, Martha Craig Daughtrey, wrote a brilliant take down of the majority that highlights the contrast between the elegance of the arguments in favor of equality and the awkward contortions required of its opponents.
Meanwhile, a federal judge in West Virginia put the final touches on marriage rights in the Coal Mining State. West Virginia has allowed marriage since the High Court declined to review the Fourth Circuit decision that controls state law, but the decision put a bow on the policy. And in Missouri, a federal judge struck the state’s antigay marriage amendment, but strangely limited his opinion to the St. Louis area. I’m not sure why this is so, but marriage news is piling up so fast that I lack the energy to look into it. The opinion, however, means that we will shortly have a case pending before the Eighth Circuit, the last of the federal appellate circuits to be presented with a marriage suit.
Finally, we should soon get a resolution in Kansas, Montana and South Carolina, three states that continue to resist the mandate issued by their respective appellate courts; the Tenth, the Ninth and the Fourth. Given that the Supreme Court has tacitly upheld marriage rights in those circuits, these states will have to prove that their marriage bans are somehow different from those that have been struck in their sister states. It’s unlikely that any federal courts will support such quixotic efforts, and it seems clear that state authorities are simply pandering to their conservative constituents.
For now, however, the tactic is working in Kansas, where the attorney general convinced Justice Sotomayor to put a temporary hold on a federal court marriage ruling based on the fact that related litigation is pending before the Kansas Supreme Court. We’ll see how this pans out, but when last I checked, federal law trumps state law, and Kansas is now operating in an appellate jurisdiction that has abolished marriage bans in two separate cases.
We’re Grrrrreat!
So now what? We wait. I recall that the High Court accepted review of Lawrence v Texas in December of 2002, scheduled arguments for March and ruled in June of 2003. So we might have to wait for weeks to see what happens here, but we now have hope.
In theory, I should now switch to other GLBT topics, but it’s hard. My mind, my entire being, is focused on marriage equality. And yet, and yet, there are other topics on our plate. The Pope just demoted an antigay cardinal, earning him another feather in his rainbow cap. And Kellogg’s issued an advertisement for Atlanta Pride that features Tony the Tiger. The far right is incensed. All their family friendly icons are defecting, and now, Tony has joined the other frosted flakes at Hell’s breakfast table.
Hey. Are there any golf fans out there? Have any of you in this subset followed Patrick Reed?
Reed is a blustering rookie who won three tournaments earlier this year and promptly announced that he considered himself one of the top five golfers in the world. Now, golf is a strange sport. It is characterized by honesty and humility. No golfer ever exalts himself or herself in this fashion, even if he or she has won five majors and reached a top ranking. It’s bad sportsmanship and bad luck. Indeed, Reed subsequently failed miserably, much to my satisfaction.
Now, the guy is in trouble for cursing to himself after three-putting, calling himself a “fucking faggot’ in clear earshot of the media. My dislike of him is confirmed! Interestingly, I’ve rooted against him ever since he made his egotistical assessment last March, but there was one exception.
Reed played on the American Ryder Cup team, and I was surprised to find myself pulling for him. Before the contest, I had hoped that Reed would fall apart in front of the world’s cameras. Although I had hoped the U.S. would win, I had assumed that my hostility towards Reed would trump patriotism. But the reverse was true. This has happened to me before. I think I want a specific sports outcome, but during the match I feel my gut urging the opposite. It’s like my reaction to the Sixth Circuit. Why, I wonder, does this truth emerge from outside my consciousness? How else am I fooling myself? Do I have other beliefs, beliefs not challenged in an arena, that would fall apart if put to a concrete test?
I lack the space to introduce a new topic, but I have just enough leeway to wander off on an unrelated tangent. I was watching Star Trek reruns while falling asleep last night and I noticed a television habit that has always annoyed me. It’s this: some characters go to a bar (or Ten Forward in this case), sit down and order something, and then something happens, they get a phone call or get paged to the bridge, and they get up and leave half their drink. Or sometimes they leave the whole drink!
Who does that? If I had to leave in a hurry, I’d chug my drink first. At the very least, I’d take one last big gulp. But the characters on TV just take off. Half the time they don’t even pay, and the rest of the time they dump some cash on the bar as if they already know exactly how much they owe. It bugs me.
arostow@aol.com
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