After being buoyed by a string of victories, the movement for the right to marry was set back Nov. 6 when the Sixth District Court of Appeals upheld bans on same-sex marriage in Michigan, Ohio, Kentucky and Tennessee.
In October, the four appellate courts had upheld lower court rulings overturning a total of 16 state bans. When those states appealed, the U.S. Supreme Court declined to hear the cases, thereby expanding the reach of marriage equality to 35 states, with 65 percent of the U.S. population.
But then the three-judge panel voted in favor of the bans by two to one, the two having been appointed by George W. Bush. By deviating from the legal consensus of the four other appellate courts — that to deny one group the right to marry violates the 14th Amendment of the Constitution — this reactionary ruling makes it likely that the issue of the constitutionality of same-sex marriage bans will go before the Supreme Court. Justice Ruth Bader Ginsburg has stated that a split among the Circuit Courts would constitute a basis for the high court to hear one or more of the cases.
Judge Jeffrey Sutton delivered the ruling two days after Election Day, which saw major gains by the Republican Party, including the ultra-right Tea Party wing. Michigan Attorney General Bill Schuette, the bigot who led defense of the states’ marriage ban, was reelected, along with Gov. Rick Snyder. Snyder is refusing state benefits to 300 Michigan couples who were married during a 24-hour window between a lower court ruling to lift the ban and the appellate court staying that ruling.
The timing of this reactionary ruling was no coincidence; the election results probably emboldened Sutton, along with Judge Deborah Cook, to issue a ruling that would not only enrage the LGBTQ community but run counter to the growing public sentiment that all loving couples deserve the right to marry.
Arguing that this issue should be decided by the voting public, who a decade earlier had voted in their states to define marriage as being between “one man and one woman,” Sutton asked: “Is this a matter that the national Constitution commits to resolution by the federal court or leaves to the less expedient, but usually reliable, work of the state democratic processes?”
In other words, the oppressed must live with second class status until a majority of voters deem them to be deserving of their basic civil rights! This is the spurious legal nonsense that the courts have been rejecting in state after state — but only because the lesbian, gay, bi, trans and queer community has been in the streets for decades.
Judicial bigotry and ignorance exposed
Sutton also argued that “governments got into the business of defining marriage and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse” and that the overturning of state bans expanded “a definition of marriage that until recently was universally followed going back to the earliest days of human history.”
In a scathing dissent, Judge Martha Craig Daughtrey exposed Sutton’s historical and anthropological ignorance. In fact, until relatively recently U.S. marriage laws were not about “regulating sex” but enforcing the subordinate position of the female spouse as property. Sutton’s Eurocentric, Christocentric view of “human history” ignores that early pre-class societies did not enforce monogamy or fidelity and recognized same-sex partnerships as equal to heterosexual unions.
Long-time bigots are hailing the ruling. “They got it right. It’s a states’ rights issue,” said Phil Burress, who led the drive to amend Ohio’s constitution to ban same-sex marriage in 2004. (Columbus Dispatch) “States’ rights” has long been the legal refuge of segregationists and racists.
The Supreme Court could decide to hear one or more of the six cases that were heard by the Sixth Circuit, or all of them combined. How will the high court rule?
Despite the rapid changes in the country supporting marriage equality, exemplified by the four previous appellate decisions, the LGBTQ movement cannot — especially in the right-wing political climate reflected in the recent elections — just sit back and wait for the Supreme Court to resolve things on our behalf. In fact, when this same court struck down the federal provisions of the “Defense of Marriage Act,” it only went halfway in upholding marriage equality. States were still allowed to deny recognition to couples married in other states, creating an exception to “full faith and credit” under the Constitution.
Fighting in the streets, united with allies among all the working class and oppressed, is what got us where we are today. That is the only way to make sure that the fundamental right to marry is finally ours, whatever state we call home.
Grevatt is an autoworker and long-time LGBTQ labor activist.