On same-sex marriage, the other appeals-court "shoe" finally drops

by Ken

Obviously the decision handed down this afternoon by a panel of the Sixth Circuit U.S. Court of Appeals, overturning lower-court rulings that had struck down same-sex marriage bans in Michigan, Ohio, Tennessee and Kentucky, wasn't influenced by the election but was presumably withheld until today to prevent it from influencing the election.

Still, it seems to me to focus some attention on a factor that seems to me to account for Tuesday's strong rightward tilt. I'm going to venture that part of it -- in some miasmatic soup of cause and efffect or perhaps just lurking malaise -- is gut-level pushback in the culture wars, against all that stuff that "they" are getting away with. I think this may play a larger role than we've allowed in the political wars to come in the final years of the Obama administration, and in the 2016 election.

The thing to remember, before we get to the actual Sixth Circuit ruling, is that until now all of the rulings handed down on same-sex marriage handed down by federal Circuit Courts of Appeal -- the level immediately below the Supreme Court -- have been against legal bans. Which was crucial to the Supreme Court's on-the-surface puzzling decision at the start of its current term to let stand without comment the Circuit Court rulings under appeal to it. (See my October 6 post , "Which of the Supreme Court's thug-justices finked out on God's own homo-haters?")

Cautious commentators were careful to note at the time that simply letting those rulings stand may have seemed like the same thing as upholding them, but wasn't at all. Practically speaking, it meant that the High Court still had a clear shot at the subject if and when four justices could agree to hear a future case.

And this was made possible by the fact that as of then there were no contradictory rulings among the circuit courts which might have required Supreme Court adjudication. It was also pointed out by cautious commentators that this situation would change as soon as even one circuit weighed in on the other side.

Now, as the Washington Post's Robert Barnes reported late this afternoon:

A panel of the U.S. Court of Appeals for the 6th Circuit upheld same-sex marriage bans in four states Thursday afternoon, creating a split among the nation’s appeals courts that almost surely means the Supreme Court must take up the issue of whether gay couples have a constitutional right to marry.

The panel ruled 2 to 1 that while gay marriage is almost inevitable, in the words of U.S. Circuit Judge Jeffrey Sutton, it should be settled through the democratic process and not the judiciary. The decision overturned rulings in Michigan, Ohio, Tennessee and Kentucky, and makes the 6th Circuit the first appeals court to uphold state bans since the Supreme Court in 2013 struck down part of the federal Defense of Marriage Act.

One thing that was puzzling about the Court's decision last month not to accept any of the same-sex marriage cases on offer to it was the position of the four far-right thug-justices. Clearly this is an issue on which they couldn't count on their steady swing-thug "Slow Anthony" Kennedy to join their party, but it only takes four justices to add a case to the docket. Did this mean that one or more among Justices Roberts, Scalia, Thomas, and Alito had thrown in the towel on the issue?

Or were they perhaps holding off in the hope that a more favorable day would yet come -- meaning at least having one circuit-court ruling to hang a constitutional hands-off on the issue, perhaps a personnel change on the Court, perhaps even a change in the cultural climate.

Well, now they've got the Sixth Circuit panel's 2-1 ruling. (No, 2-1 doesn't seem like the healthiest margin for major transformations in federal law. But now that so much law is made by circuit-court panels, it's pretty much the way our law is made.) Robert Barnes reports:

Sutton, writing for himself and Judge Deborah L. Cook, said that the challengers had not made the case for “constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.”

Judge Margaret Craig Daughtry dissented. “If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

It's worth considering too that the rulings overturned today were made by judges who thought they were interpreting the Supreme Court's thinking in striking down the portion of the federal Defense of Marriage Act that provided cover for same-sex marriage bans, which seemed confirmed by the High Court's declining of all those cases for this term. Now there's a contrary ruling on the table at the circuit-court level.

Plus, much as I hate to make it appear that Justice Ruth Bader Ginsburg is on death watch, if she -- or one of her non-thug colleagues -- does need to be replaced during the remainder of the Obama administration, can we imagine what sort of replacement we might get if he or she has to pass muster with, for example, Sen. Rafael "Ted from Alberta" Cruz?

And come 2017, who knows?

It doesn't seem likely that any of the thug-justices are going anywhere anytime soon.

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