By Jay Kaplan
What a disheartening week last week seemed for LGBT equality and civil rights. In Michigan, one-third of all eligible voters voted in the 2014 election and selected and retained both policy makers and judges whose positions on LGBT issues have been anything but friendly. The same can be said for the U.S. Congress, where majority control is now in the hands of conservatives. And then just two days later, the federal 6th Circuit Court of Appeals, in a 2-1 decision, overturned lower court decisions favorable to marriage equality in cases from Michigan (DeBoer v Snyder), Ohio, Kentucky and Tennessee.
This decision is an outlier, in that it goes against four other federal court of appeals decisions upholding striking down marriage bans for same-sex couples as unconstitutional. It also goes against, and is incompatible with, the 50 state and federal lower court decisions that uphold fairness for LGBT families, and with the U.S. Supreme Court decision Oct. 6 to let marriage equality decisions stand in Indiana, Wisconsin, Utah, Oklahoma and Virginia.
This majority decision written by Judge Jeffrey Sutton (appointed by President George W. Bush and a former clerk to the most conservative of Supreme Court justices, Justice Antonin Scalia) is not only fundamentally misguided, wrong and unfair in terms of its result, but it is also based on the flawed and false assumptions that same-sex couples should have the right to marry left up to the people or the state legislatures, and that the courts should stay out of it. Anyone with a basic knowledge of American government and the federal Constitution can tell you that there is no “will of the majority” exception to this Constitution. We have three branches of government: the executive, the legislative and the judiciary, each of which provides checks and balances regarding the overreach of constitutional authority.
The Constitution protects equal rights for all and gives the job to the courts of preventing the oppression of minorities at the hands of the majority. Leaving constitutional safeguards to the popular vote would place our most precious constitutional guarantees in jeopardy and subject them to the whim of majority rule. Sutton’s opinion promotes the notion that voters can discriminate against disfavored minorities, here LGBT people, denying them one of the core aspects of liberty. Under the 14th Amendment states cannot treat any group of people as second-class citizens, denying them fundamental rights. A judge’s job is to review discriminatory laws, like the marriage bans that deny LGBT people and their families both dignity and respect, and to apply the meaning of the 14th amendment. Sutton’s decision, joined by Judge Deborah Cook (another George W. Bush appointee), abdicated that responsibility.
I am heartened by the dissent of Judge Martha Daughtrey (appointed by President Bill Clinton), who characterized the Sutton opinion as a “TED Talk or possible lecture in Political Philosophy,” which totally fails to address the basic question of whether denying same-sex couples the right to marry violates the equal protection clause of the 14th Amendment. She chides the majority for its failure to consider the real harm done to families like April DeBoer and Jayne Rowse and their children when they are denied both the respect and protections afforded by legal civil marriage.
Is there a silver lining here? Yes, and it could be found in the U.S Supreme Court. When the Court refused to take up appeals in favor of marriage equality from four other federal appellate courts, it was most likely for two reasons: 1) that the Court appears to be comfortable with idea of same-sex couples marrying (as of this date, couples can marry in 32 states plus the District of Columbia, with three states pending, to likely bring that total to 35 states); 2) that up to that time, there was not a split among the Circuit Court of Appeals on the issue of marriage equality. Indeed, Justice Ruth Bader Ginsburg was quoted as saying that the Court was not in a hurry to decide marriage equality until there might be a split in the circuit courts. So what could happen next?
Plaintiffs in these marriage cases have two options. They could request an en banc hearing before the 6th Circuit, which means that their case would be heard by all the judges on the 6th Circuit. If an en banc hearing was granted, Judge Sutton’s opinion would be vacated and a new hearing would be held. However, since ten out of the fifteen active judges on the 6th Circuit were appointed by Republican presidents, this appears to be a pointless, time-wasting gesture. Lawyers for the plaintiffs in the six different marriage cases (including DeBoer) have conferred and have agreed to file petitions for certiorari with the Supreme Court, skipping the en banc option. Indeed, the DeBoer legal team plans to file their petition within the next week. One or more of these cases could end up on the Supreme Court’s active docket for a decision during the current term, which ends in June 2015. According to law professor Art Leonard, of New York Law School, the best candidate for such review would be the Michigan DeBoer decision, the only one decided after a trial with a full factual record. Ultimately, the Supreme Court needs to decide this issue once and for all, for the nation and for the remaining 15 states, including Michigan, that deny equality to same-sex couples. Given the fact that, by that time, at least 35 states will have permitted same-sex couples to marry, it is thought unlikely that the Supreme Court would issue a decision reversing this progress.
And is there a silver lining to the election results in Michigan? Yes. During the next six weeks (termed the lame duck period of the Michigan legislature), the legislature will consider a bill to amend our state civil rights law, Elliott-Larsen, to finally include both sexual orientation and gender identity and expression, which would protect LGBT against discrimination in employment, housing and public accommodations. These current legislators, and our re-elected Governor, need to hear from you in support of a fully-inclusive bill which does not carve out exceptions to discriminate based on religious belief. Check out the Freedom Michigan website at http://www.freedommi.org and sign up to do your part. The time is short, but this can happen with everyone’s participation.