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.
These “originalists” are pretty much like the cherry-picking bible thumpers… they see what they want to see & ignore what doesn’t support their own flawed thinking.
The bible tells us that ‘god’ skipped over slavery & instead banned shellfish?!
And these originalists act as though slavery, women’s vote, mixed race marriages, etc (all supported at one time by the Supreme Court) simply never happened.
If there’s a positive in all of it, it will be that this whole originalist bullshiz is so lampooned when it reaches the full SCOTUS that even Scalia-the-Hut will have to let it go already.
The 1st amendment obviously wasn’t intended to grant corporations the rights of people, and yet funny enough I don’t remember that judge every speaking out against Citizens United.
it isn’t hard to see that the constitution is being brought into the same sex marriage battle because it is seen as a way to force states that don’t want to legalize same sex marriages to legalize it. And, when you bring the constitution in, it is hard to avoid a discussion about the intent of the original slave owning congressmen.
Given time, California was well on its way to legalizing same sex marriage on its own, without courts and public votes. Of course it is much harder work to convince 50 state legislatures to legalize same sex marriage hence the desire for a quick route via litigation.
It looks like A-Fucking-FER is so far pretty much locked out of the litigation taking the Sixth Circuit decision to the Supreme Court. And Here A-FUCKER-FER had this nice little movie script, a book and a play celebrating how they brought marriage equality to lesbians.
I have to say that one of the funniest instances of someone trying to argue strict constitution was this actor from Dukes of Hazzards (the blond one) announcing in some interview on tv that he believed in State’s Rights.
Opps, looks like Olson is listed in the 6th circuit opinion for one of the plaintiffs
It’s really time gays moved out of these pro-bigot states and into states where there’s marriage equality. Let the heteros do without all the goods and services that gay people provide. Making their life more comfortable is not our responsibility. Move.
@Cam: Your mind went to the 1st amendment, mine to the 2nd. Since the writers of the 2nd could not have envisioned an ak47 or an Uzi or any weapon beyond a flintlock, muzzle loader; then the 2nd should not apply to them. Let’s see “Honorable Judge” Sutton rule on that one.
It looks like Circuit Judge Jeffrey Sutton is itching to replace Thomas/Scalia on the Supreme Court. He just had his name thrown into the list of potential conservative jurist to be named by the next Rethuglican president. I do believe the current congress probably will go with the impeachment play book again. That’s what gave us the Supreme Court appointment of George W Bush. It’s not like they have any viable candidate that could come close to Hillary Clinton. So dirty politics will have to do.
It doesn’t matter that the congress did not imagine AK47’s because the intent of an armed citizenry is that it serves as a control on the state (the type of arms don’t matter and it can be argue that an AK47 better serves the intent of the right to have arms than a regular pistol). This is actually a good example of what congress was thinking. What they had in mind was that monarchies in Europe solidified their power by making sure that the poor / the population wasn’t armed (and therefore that the poor were no threat to the King’s army). This is why it is so fucking funny when some UK Queen pontificates about America’s obsession with guns. Imagine if the NYPD were the only people in New York City with guns? The fact that any number of angry people in NYC could be armed at any time definitely tempers what the fucking NYPD (the State) assumes it can get away with.
‘Tis a guessing game what SCOTUS will do. I like to think they will be consistent with their ruling to overturn section 3 of DOMA. SCOTUS then denied the appeals of the states that banned marriage equality whose circuit courts ruled in favor of marriage equality in October. Now, the reverse situation exists where the 6th Circuit Court ruled in favor of the states banning marriage equality and the appeals are in favor of marriage equality. SCOTUS may rule to overturn the 6th Circuit Courts ruling as unconstitutional and approve the appeals for marriage equality which agrees with its previous rulings in favor of marriage equality. But then that is the logical approach. Hopefully SCOTUS will be nice and rule in favor of marriage equality before the holidays.
I still think that Utah being required to outlaw polygamy (as a condition to Utah being considered for statehood) has to at some point in time come into any discussion about the congress’ right / authority to “regulate” marriage. As I recall, congress not only required Utah outlaw polygamy but they also prevented any state already in the union from legalizing it. So, the federal gov has regulated marriage before and there has to be “text” (from the congressional discussion on polygamy) on who congress intended should have the right to marry.
HENCE, one gets a clue as to why Utah / Mormons have an “interest” in the Federal Governments authority to “regulate” marriage.
Comments are closed.