Block on Trump's Asylum Ban Upheld by Supreme Court
The Sixth Circuit was always the outlier when it came to same-sex marriage. Over the past two years, the Fourth, Seventh, Ninth, and Tenth Circuits have all found a constructional right to same-sex marriage. Meanwhile the Sixth went it alone, rejecting the plaintiffs' claim that refusing to allow them to marry violated their equal protection and due process rights.
That ruling was overturned today, as the Supreme Court announced this morning that same-sex couples have a constitutional right to marriage.
When the Sixth declined to recognize same-sex marriage rights, it did more than just take the road less travelled -- it took all of them. The court presented a litany of arguments, all of which it said prevented it from ruling for the plaintiffs, who were asking for marriage, yes, but also to be recognized as parents of their children and spouses of their deceased partners.
First, for a question touching on traditions that have stretched over millennia, the proper solution is the political process, the Sixth reasoned. Secondly, precedent limits their ability to rule. The Supreme Court declined a same-sex marriage appeal out of Minnesota in 1972, Baker v. Nelson, stating simply that it did not "raise a substantial federal question."
What about the fact that the Supreme Court had denied petitions for writs of certiorari from sister circuits ruling for same-sex marriage? That does not matter, the Sixth reasoned, since there could be a "variety of considerations" underlying those. That one phrase from 1972, in a one sentence denial of cert, still binds us, the Sixth held.
Still, they continued. Windsor, the case striking down the heart of the federal Defense of Marriage Act, does not support same-sex marriage, the court reasoned. That was, after all, just about the federal government, not the states.
And they still went on: the original meaning of marriage limits it to a man and a woman, rational basis scrutiny allows a same-sex marriage ban, forbidden animus is not present, a fundamental right to marriage can't extend to historically anomalous unions, et cetera.
For all their myriad reasons, however, the Sixth was wrong. Tradition cannot be the limit of our understanding of rights, the Supreme Court wrote -- instead, we must evaluate personal liberty in light of "our evolving understanding of liberty."
Baker should not have been given precedence over "other, more instructive" cases, Justice Kennedy wrote for the majority. Windsor requires respect for all marriages, regardless of a couple's sexual orientation. As to animus, the bans on same-sex marriage disrespect those unions and teach that gays and lesbians are "unequal in important respects." Finally, since Kennedy studiously avoids the question of scrutiny, it's fair to assume that the Sixth was wrong in upholding the bans under rational basis review as well.
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