The timing is fortunate for Republicans who were able to mostly avoid this issue in Tuesday’s elections: Two days later, the Sixth Circuit Court of Appeals became the first federal appeals court in the country to uphold state bans on gay marriage.
The 4th, 7th, 9th and 10th Circuits have already ruled that such bans are unconstitutional.
The 2-1 opinion (two Republican appointees in the majority with a Democrat appointee dissenting) delves into fundamental issues of the role of courts:
What remains is a debate about whether to allow the democratic processes 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. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty-assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.
Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. 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 the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?
They conclude that this matter should be decided by the political system, not the judicial system:
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. Better in this instance, we think, to allow change through the customary political proc esses, 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 ne w social issue in a fair-minded way.
If an en banc hearing of the case happens and does not overturn the 3-judge panel, it becomes likely that the Supreme Court will then hear a gay marriage case, in which situation all eyes will be on Justice Anthony Kennedy to see if he gives more weight to his support for federalism or to his support for gay marriage.
Notice to Readers: The American Spectator and Spectator World are marks used by independent publishing companies that are not affiliated in any way. If you are looking for The Spectator World please click on the following link: https://thespectator.com/world.