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.