In a 2-1 decision on Thursday, November 6, 2014, the Cincinnati-based 6th U.S. Circuit Court of Appeals reversed federal district court judges in Kentucky, Michigan, Ohio and Tennessee who had struck bans on same-sex marriage and said the issue is most appropriately decided in the political arena. Case No. 14-1341, April DeBoer, et al v. Richard Snyder, et al, (6th Cir. issued 11/06/2014) For Publication.
I'm going to talk today about the dissent--because this is what caught my eye and appealed to me as a family lawyer who cares deeply about the constitutional rights implicated in these cases. For, as Judge Martha Craig Daughtrey, in dissenting, says “But what about the children?” That's a critical issue that the majority leaves unanswered.
Judge Daughtrey, in dissenting, begins with this quotation:
“The great tides and currents which engulf the rest of men
do not turn aside in their course to pass the judges by.”
Benjamin Cardozo, The Nature of the Judicial Process (1921)
She again makes clear her disappointment with the majority, as she concludes her 22-page dissent as follows:
More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. 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.
Judge Daughtrey's dissenting opinion has a strong and impassioned beginning and concludes in an equally strong manner. It is a must read. Criticizing the majority, Judge Daughtrey wrote:
"The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent."
"In the main, the majority treats both the issues and the litigants here as mere abstractions. Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status—de jure status, if you will—with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully legitimate parents at their children’s schools. They seek to do this by virtue of exercising a civil right that most of us take for granted—the right to marry." [citing Loving v. Virginia, 388 U.S. 1, 12 (1967) (“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”)]
Readers who are familiar with the Supreme Court’s recent opinion in United States v. Windsor, 133 S. Ct. 2675 (2013), and its progeny in the circuit courts, particularly the Seventh Circuit’s opinion in Baskin v. Bogan, 766 F.3d 648, 654 (7th Cir. 2014) (“Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, . . . they are about the welfare of American children.”), must have said to themselves at various points in the majority opinion, “But what about the children?” I did, and I could not find the answer in the opinion. For although my colleagues in the majority pay lip service to marriage as an institution conceived for the purpose of providing a stable family unit “within which children may flourish,” they ignore the destabilizing effect of its absence in the homes of tens of thousands of same-sex parents throughout the four states of the Sixth Circuit.
Indeed, with the exception of Ohio, the defendants in each of these cases—the proponents of their respective “defense of marriage” amendments—spent virtually their entire oral arguments professing what has come to be known as the “irresponsible procreation” theory: that limiting marriage and its benefits to opposite-sex couples is rational, even necessary, to provide for “unintended offspring” by channeling their biological procreators into the bonds of matrimony. When we asked counsel why that goal required the simultaneous exclusion of same-sex couples from marrying, we were told that permitting same-sex marriage might denigrate the institution of marriage in the eyes of opposite-sex couples who conceive out of wedlock, causing subsequent abandonment of the unintended offspring by one or both biological parents. We also were informed that because same-sex couples cannot themselves produce wanted or unwanted offspring, and because they must therefore look to non-biological means of parenting that require planning and expense, stability in a family unit headed by same-sex parents is assured without the benefit of formal matrimony. But, as the court in Baskin pointed out, many “abandoned children [born out of wedlock to biological parents] are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.” Id. How ironic that irresponsible, unmarried, opposite-sex couples in the Sixth Circuit who produce unwanted offspring must be “channeled” into marriage and thus rewarded with its many psychological and financial benefits, while same-sex couples who become model parents are punished for their responsible behavior by being denied the right to marry. As an obviously exasperated Judge Posner responded after puzzling over this same paradox in Baskin, “Go figure.”
Deboer et al v Snyder et al, pages 43--45
Are you hooked yet? You may read the entire opinion here.