In a major blow to the gay-rights movement, a federal appeals court today denied same-sex couples the right to marry in four states -- including Michigan -- concluding that voters should decide whether gay marriage is a good idea or not.
"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," the 6th Circuit U.S. Court of Appeals wrote in its 42-page ruling. "Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike ... resolve a new social issue in a fair-minded way."
In a 2-1 decision, the 6th Circuit upheld same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee. The court issued its highly anticipated decision three months after hearing same-sex marriage cases from all four states, where federal judges had previously struck down bans on constitutional grounds.
The 6th Circuit overturned those decisions, concluding judges shouldn't be deciding whether gays and lesbians should marry or not.
"Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel .... Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us -- just two of us in truth -- to make such a vital policy call for 32 million citizens who live within the four states of the 6th Circuit," the court wrote.
The panel also had this to say about the definition of marriage: " ... for better, for worse ... 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."
While the ruling came as a huge blow to the two Michigan plaintiffs who challenged Michigan's ban on gay marriage, they remain adamant that they will win the right to marry before the U.S. Supreme Court.
"We're going straight to the Supreme Court," said Dana Nessel, lead attorney for Hazel Park nurses April DeBoer and Jayne Rowse. "We feel absolutely confident that the U.S. Supreme Court will accept one of the cases out of the 6th Circuit, most likely Michigan's or Kentucky's."
The U.S. Supreme Court has not yet weighed in on the issue of gay marriage. Now that there's a split in the federal appeals courts on the issue -- the gay-marriage movement has won 30-plus cases in the last year -- the Supreme Court will likely take up the issue, she said.
"We feel the Supreme Court was waiting for this," Nessell said. "We're looking forward to this issue being resolved once and for all for in this country, and I have every confidence that by the end of June 2015, there will be marriage equality in all 50 states."
Two 6th Circuit judges -- both conservatives -- agreed. One of them is Jeffrey Sutton, who once ruled in favor of a Christian evangelical graduate student who was expelled for refusing to counsel gay students on religious grounds.
The other is Deborah Cook, whose appointment to the 6th Circuit in 2003 caused an uproar among some civil rights groups. In 2000, as an Ohio Supreme Court justice, she was a sole dissenter in a case of a corrections officer who refused to cut his hair on religious grounds. She said the employer had a right to fire him for refusing to cut his hair.
The lone liberal deciding the same-sex marriage debate also is the sole dissenter: 6th Circuit Judge Martha Daughtrey, who argued the democratic process doesn't always work. In her dissent, and during oral arguments in August, she noted that women won the right to vote through the courts, and interracial couples won the right to marry the same way.
"Despite a civil war, the end of slavery and ratification of the 14th Amendment in 1868, extensive litigation has been necessary to achieve even a modicum of constitutional protection from discrimination based on race, and it has occurred primarily by judicial decree, not the democratic election process," Daughtrey wrote in her 22-page dissent.
Daughtrey criticized her colleagues for suggesting judges "step aside" and let the voters decide the issue of same-sex marriage.
"My colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary," Daughtrey wrote. "If we in the judiciary do not have the authority, and indeed the responsibility to right fundamental wrongs left excused by a a majority of the electorate, our whole intricate, constitutional system of checks and balances .... prove to be nothing but shams."
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