Thursday, November 6, 2014

Last Call For SCOTUS-Bound

In arguably the least surprising move ever, the 6th Circuit has now forced a Supreme Court ruling on same-sex marriage by reversing lower court rulings and finding same-sex marriage bans to be constitutional.  In fact, forcing a Supreme Court ruling is the entire basis of the ruling:

This case ultimately presents two ways to think about change. One is whether the Supreme Court will constitutionalize a new definition of marriage to meet new policy views about the issue. The other is whether the Court will begin to undertake a different form of change—change in the way we as a country optimize the handling of efforts to address requests for new civil liberties.

If the Court takes the first approach, it may resolve the issue for good and give the  plaintiffs and many others relief. But we will never know what might have been. If the Court takes the second approach, is it not possible that the traditional arbiters of change—the people— will meet today’s challenge admirably and settle the issue in a productive way? In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the  population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

For these reasons, we reverse.

I said last month that a circuit court ruling against same-sex marriage would force SCOTUS to act.  If they don't however, Ohio, Michigan, Kentucky and Tennessee will continue to be ruled by bigotry and hatred.  We'll see how it shakes out, but right now that circuit split means that most likey this is headed for SCOTUS after all.


RepubAnon said...

None dare call it judicial activism - when a group of conservative judges base an opinion on their feelings rather than the law.

drouse said...

I hope they don't expect Roberts to thank them for it. I get the impression that Roberts,as opposed to the whole court,really doesn't want to deal with the issue. After all, it is not going to be remembered as the Alito court or the Kagan court.

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