We think that the people ought to decide by vote whether you should enjoy equal protection of the law under the 5th and 14th Amendments of the United States Constitution declared the federal 6th Circuit Court of Appeals last week.
The Court, in a 2 to 1 decision, gutted well reasoned lower court rulings in Michigan, Ohio, Tennessee and Kentucky holding that statutes in those states which ban same sex marriage are unconstitutional violations of equal protection of the law. They upheld the statutes saying that social issues such as whether gays have the right to marry should be up to the voters through the democratic process, not the courts.
It’s the first federal appeals court to uphold state bans against gay marriage since the Supreme Court struck down part of the federal Defense of Marriage Act in 2013.
“Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”
Voting to segregate the public schools? That’s fine by Justice Sutton. Why should the courts give a shit about equal protection of the law when it comes to social issues? That should be left up the people, the voters – the heroes. We don’t need the Constitution; we don’t need the Bill of Rights; let’s just leave all those contentious social issues to the democratic process.
Lone dissenting Senior Judge, Martha Craig Daughtrey, (the only judicial hero on the Court), noted that Sutton’s opinion “would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy.” But federal judges are required to protect the constitutional rights of the minority.
“If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the she electorate,” she wrote, “our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”
Justice Sutton doesn’t give much thought to oaths. He’s far more concerned about who will be the hero.