The Battle Over Same-Sex Marriage in the US

The U.S. Court of Appeals for the Sixth Circuit, which includes states like Ohio, Michigan, Tennessee and Kentucky, upheld same-sex marriage bans on Friday. It wasn’t surprising, as the panel of judges was composed of three people, from whom two judges were appointed by the Republican George W. Bush and one judge by the Democrat Bill Clinton. Two judges voted to ban same-sex marriages, whereas the Democrat voted for its legalization.

Arguments supporting the ban, pronounced by Circuit Judge Jeffrey Sutton, were pretty baffling.

“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 32 million citizens who live within the four states of the Sixth Circuit,” Sutton wrote. And since the court doesn’t have sufficient authority to impose changes, it leaves the law as it currently stands— with anti-gay marriage laws in four states.

“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,” continued Sutton. “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 …”

Therefore, Sutton seems to be saying: This is not our business, let society decide in referendums or through their representatives in the state governments.

Judge Martha Craig Daughtery who wrote a dissenting opinion, claimed that Sutton’s disquisition is the unnecessary philosophizing about the essence of democracy, whereas “the verdict will concern concrete, living people who are not an abstraction.”*

It can be seen as a bold one because gay marriages are already legal in 32 states, as well as Washington, D.C. In the following days another three states will legalize gay marriages. So far, the Court of Appeals for other districts consistently held that lesbian and gay people are allowed to get married, as they are guaranteed the right to equality written in the Constitution. Thus, a month ago, when the case was considered by the Supreme Court in Washington, nine of the most important judges from the U.S. decided that they would not engage in it. They can intervene only at the point when conflicting judgments appear at the sub-national level. Therefore, now they will be finally forced to deal with this issue.

The sentence comes as a surprise mainly because same-sex marriages nearly stopped being a subject of debate in the U.S. Before the congressional election on Tuesday, candidates didn’t even mention it in their campaigns. The Republicans had already come to terms with the changes that occurred in the last decade. Ten years ago, 59 percent of Americans were against same-sex marriage, whereas 38 percent supported it. Currently, 59 percent of people support the idea, and 34 percent are against it.

Yesterday’s verdict reminds us how significant the election was, in which the Republicans managed to obtain the majority in the Senate. Admittedly, federal judges are appointed by the president, but they are confirmed by the Senate. This means that President Obama may already forget about appointing his “progressives” — they won’t pass. It may also be the case that in the next two years he may be forced to appoint new judges to the Supreme Court because some of its members are in their dotage. This would be absolutely essential, as currently, there are four “progressives” and five conservative judges in the Supreme Court.

*Editor’s Note: This quotation, accurately translated, could not be verified.