Finally, a Judge Votes for Democracy


Same-sex marriage is headed for the US Supreme Court. Justice Ruth Ginsberg is reported to have said that the Court would be in no rush to decide the issue unless there was a clear division among the courts of appeals.

Now there is.

In a two to one decision, the US Court of Appeals for the Sixth Circuit in Cincinnati yesterday overturned lower-court rulings in Kentucky, Michigan, Ohio, and Tennessee which had declared that bans on same-sex marriage violated the American Constitution. The US is now a patchwork quilt of laws on same-sex marriage, with 32 states and the District of Columbia permitting it and recognising marriages from other jurisdictions and 18 states banning it. The Supreme Court will have to step in to adjudicate.

This decision is a gem and merits careful study. Circuit Judge Jeffrey S. Sutton has done for the traditional marriage camp what Judge Richard Posner, of the US Seventh Circuit Court of Appeals, did for same-sex marriage – to combine a mastery of the law with wry wit.

Whether in court or out on the street, debate about same-sex marriage today frames the issue as a case of discrimination against homosexuals. This puts supporters of traditional marriage on a back foot. Discrimination is commonly attributed to blind prejudice or hillbilly conservatism. Judge Sutton’s arguments hang this out to dry. It is a bold vote of confidence in the democratic process.

Two themes are central in the decision he has written together with Judge Deborah L. Cook. The first questions whether reform through judicial fiat is democratic and the second asserts that misgivings about reform are rational.

Judge Sutton does not necessarily oppose same-sex marriage. He simply says that no right to it exists in the US Constitution and that it is an issue for the states. He is scathing about a judiciary which leads the charge on fundamental social change:

“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.”

Rational review basis

In his opinion, the “rational basis” test, the most lenient standard for assessing claims for discrimination, is appropriate for same-sex marriage. State laws banning same-sex marriage can be defended rationally, he says. He offers two reasons. First, sex between men and women needs to be regulated in some fashion so that stable family relationships are promoted.

“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. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? …

“It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues.”

Read more: