Judge Jeffrey Sutton, writing for the 2-1 majority, acknowledged that it is inevitable that American law will allow gay couples to marry, but the question is “when and how that will happen.” The majority decision asserts that the question should be decided not by resort to fundamental constitutional rights but by a majority of voters in any particular locale. The decision is long on political theory and esoteric questions of federalism, prompting an acerbic dissent from Judge Martha Craig Daughtrey:
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 . . . and leads us through a largely irrelevant discourse on democracy and federalism.
It now remains to be seen whether the entire Sixth Circuit will review the decision en banc, and what effect, if any, that will have on the potential for Supreme Court review. Justice Ruth Bader Ginsberg herself recently acknowledged that Supreme Court review is likely if the Sixth Circuit finds the bans constitutional.
Cotchett, Pitre & McCarthy engages in constitutional litigation and has long represented the rights of political minorities. Contact CPM if you have a constitutional litigation issue.