While you weren’t looking, a couple of federal judges have gotten into a little marriage kerfuffle with each other that looks kind of like the judicial version of a lover’s quarrel. Judges in one circuit said marriage is none of their business; a judge in another circuit followed up a day later with a decision that says, more or less, “yes it is,” and now the Supreme Court will probably have to straighten everything out. (Or maybe they won’t.)
The dispute really got going last Wednesday, when Circuit Judge Jeffrey Sutton issued a ruling in marriage cases from four states: Michigan, Ohio, Tennessee, and Kentucky. Sutton’s attitude was basically that judges shouldn’t get involved in the debate around marriage, since it should be up to voters and politicians.
Sutton is super-conservative originalist when it comes to constitutional matters, and has always been good at stirring up controversy. In his ruling, he says that constitutional amendments should be interpreted in light of what their authors meant — in other words, since the 14th Amendment couldn’t possibly have anticipated gay marriage, it doesn’t apply here.
Judge Martha Daughtrey, who wrote the dissent in the case, was having none of it. She dismissed Sutton’s ruling as “an engrossing TED talk” and “irrelevant.” But that doesn’t help us much, since she was in the minority amongst the conservative Sixth Circuit judges. Oh well. Thanks for trying, Judge Daughtrey. You did your best. Let us buy you a drink and get smashed while complaining about that jerk Sutton.
But the next day things got a little spicier. Judge Robert Chambers issued a ruling in Missouri that was clearly intended as a rebuke of Sutton’s lame Sixth Circuit decision. Chambers said that Sutton’s “wait and see” attitude “fails to recognize the role of courts in the democratic process.” He accused Sutton of shirking his duty simply because it was “contentious,” and added, “Judges may not simultaneously find a right violated yet defer to an uncertain future remedy voluntarily undertaken by the violators.”
Bam! That’s a slapdown, judicially-speaking.
Of course, the Chambers decision doesn’t really impact anything in the Sixth Circuit … yet. Now everything gets bundled up with more briefs and sent to the Supreme Court for them to decide. Or, if they really don’t want to get their hands dirty with this marriage stuff, to decide not to decide. If that happened, it would be up to voters and politicians in each individual state to win the freedom to marry. Good luck waiting for that to happen this decade in Tennessee, where a 2013 survey showed just 28 percent of respondents supporting marriage equality. Ugh.