Can Same Sex Marriage Bans be Upheld Anywhere in this Era of Judicial Activism?

Decision of Sixth Circuit will likely send the question to the U.S. Supreme Court and it's not looking good

The constitutional issues raised by state laws limiting marriage to one man and one woman now seem destined for consideration by the United States Supreme Court. Yesterday, in DeBoer v. Snyder, the United States Court of Appeals for the Sixth Circuit upheld the marriage laws of four states (Kentucky, Michigan, Ohio, and Tennessee). This is the first federal court of appeals to uphold laws that upheld the traditional view of marriage, and the conflict between the Sixth Circuit opinion and the four other federal courts of appeals that have addressed this issue almost certainly guarantees that the Sixth Circuit decision will soon be considered by the United States Supreme Court.

The Sixth Circuit’s decision was by a 2-1 vote. The majority opinion was written by Judge Jeffrey Sutton, one of the most respected judges in the country. Judge Sutton’s opinion, which is characterized by a deep respect for democracy and federalism and for the limited role of the federal courts in deciding controversial social issues, provides a blueprint for the Supreme Court. It is, sadly, one that the United States Supreme Court is not likely to follow.

Since the U.S. Supreme Court invalidated a portion of the Defense of Marriage Act in 2013 in United States v. Windsor, many lower courts have addressed the constitutional issues raised by state laws prohibiting same-sex couples from marrying. Most of the decisions have invalidated such bans. On October 6, 2014, the United States Supreme Court declined to hear cases from several federal courts of appeals that had invalidated state bans on same-sex marriage. The Supreme Court’s refusal to hear those cases allowed same-sex marriage in the states involved. As a result, same-sex marriage is now permitted in over 30 states. This reality is likely to be relied upon by the Court when it considers DeBoer v. Snyder.

But it is important to recognize that this reality – that same-sex marriage is now allowed in nearly two-thirds of the states – is largely a judicial creation. Since the early 1990s, we have witnessed dizzying developments on the issue of same-sex marriage. Congress, when it passed the Defense of Marriage Act in 1996, supported the traditional understanding of marriage. Over thirty states followed suit.

There has, of course, been increasing legal acceptance of same-sex marriage. But this development is mostly the result of judicial decisions. Only about a dozen states have authorized same-sex marriage through the democratic process.

The other states that now authorize same-sex marriage got to that point through judicial commands. Much of the judicial development was spurred on by the Court’s decision in the Windsor case. Since then, most court decisions – Judge Sutton’s opinion is a welcome exception to this trend – have moved in favor of same-sex marriage. Most of those decisions are short on legal reasoning. In the words of Judge Feldman (who recently upheld Louisiana’s marriage law), these decisions “exemplify ‘a pageant of empathy’ decisions impelled by a response of innate pathos. Courts that … appear to have assumed the mantle of a legislative body.”

Most think that recognition of same-sex marriage is now inevitable. The law and popular opinion have moved in support of same-sex marriage since the mid-1990s. But it’s a good thing for judges to avoid trying to get on the right side of history, at least when the Constitution does not clearly speak to the issue under review. The justices who gave us Roe v. Wade thought they were settling the abortion issue by simply ratifying the trend in favor of the right to abortion. But the law and popular opinion have moved in a pro-life direction since 1973. The same dynamic may play out with regard to same-sex marriage. A Pew poll from late September indicated a drop in public support for same-sex marriage.

Let’s hope that the Supreme Court, when it considers DeBoer v. Snyder, will let this issue play out through the democratic process. That was certainly Judge Sutton’s operating premise. Judge Sutton closed his opinion with this passage:

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these changes are judges and lawyers. Better in this instance, we think, to allow change through the customary political process, in which 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.

But Judge Sutton’s exercise of judicial humility is not that common. All of us, and maybe particularly judges, want to be heroes. I doubt whether the Supreme Court Justices who refused to hear same sex marriage cases in October will now affirm Judge Sutton’s ruling. The Justices will likely rely on the legal trend they supported to force same-sex marriage on every state in the Union.

Richard Myers is Professor of Law, Ave Maria School of Law and serves on the Aleteia Board of Experts.