(Leaf raking was never my favorite chore.)
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A gay man's view of the world from down Texas way
C I V I L M A R R I A G E I S A C I V I L R I G H T.A N D N O W I T ' S T H E L A W O F T H E L A N D.
(Leaf raking was never my favorite chore.)
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| Photo by Dan Aasland, via Wikipedia |
| Wikipedia map of weekend protests with more than 100 participants. Minneapolis is marked with a red circle. You can see the interactive map and more at List of George Floyd protests. |
What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty-assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.Judge Martha Craig Daughtrey dissented strongly, saying:
Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?
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.Full text of the ruling and dissent here. The ACLU has already announced that they will immediately appeal to the Supreme Court, which you may recall declined to make any ruling last month because at that time all the federal appeals courts had upheld same-sex marriage as a fundamental civil right; now the Supremes will have to deal with the question directly, it seems to me.
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.
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.
The decision flies in the face of a nearly unanimous string of 49 rulings issued since June 2013 in favor of the freedom to marry for same-sex couples. Just three lower court rulings in the past year and a half have upheld marriage discrimination.Click here to see pics and read the stories of several of the plaintiff couples affected by the Sixth Circuit's decision.
Decisions issued by the Sixth Circuit were reversed by the United States Supreme Court 24 out of the 25 times they were reviewed in the five annual terms starting in October 2008 and ending in June 2013 — a higher frequency than any other federal appellate court during that time period.
The Court is not aware of any legal authority that entitles a ballot-approved measure to special deference in the event it raises a constitutional question. On the contrary, the Supreme Court has clearly stated that if . . . an enactment violates the U.S. Constitution - whether passed by the people or their representatives - judicial review is necessary to preserve the rule of law . . . [t]he electorate cannot order a violation of the Due Process or Equal Protection Clauses by referendum or otherwise, just as the state may not avoid their application by deferring to the wishes or objections of its citizens. . . .
In attempting to define this case as a challenge to “the will of the people,” Tr. 2/25/14 p. 40, state defendants lost sight of what this case is truly about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples. It is the Court’s fervent hope that these children will grow up “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, 133 S. Ct. at 2694. Today’s decision is a step in that direction, and affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail.
The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration. . . . While Regnerus maintained that the funding source [i.e., the Republican Heritage Foundation] did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged.Yeow!
It's coming down to the wire now in Washington state, Maine, and Kalamazoo, Michigan. The outcome of these contests will undoubtedly influence voters and legislators in future elections elsewhere. Here's what you can do right now, today, wherever you live, to help preserve the equal protection of the laws for your fellow Americans - and ultimately, for yourself.