In-Depth Analysis of the Sixth Circuit Hearing

Written by scott on August 12th, 2014

Sixth CircuitSitting in the federal courtroom in Cincinnati, listening to the Sixth Circuit arguments in six same-sex marriage cases, one theme seemed especially prevalent: state defenders of same-sex marriage bans argued that the issue should be left up to “the democratic process”, and their concerns were shared by Judge Jeffrey Sutton.

Judge Sutton asked the plaintiffs’ lawyer in one case, “assuming you win,” isn’t it better and more honest to win by way of the democratic process? Sutton, whose background is in leading litigation that promoted federalism, alternatively wondered aloud whether LGBT people should win their rights by changing every person’s mind, and whether states are permitted to move one step at a time, addressing issues incrementally, even though their approach may leave some groups without protection for long periods of time.

A short and rhetorical answer to this problem is Justice Jackson’s opinion in West Virginia Board of Education v. Barnette, in which he said that “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” That was one answer given by the plaintiffs. Judge Sutton seemed to suggest in his comments that the “dignity” that Justice Kennedy addressed in United States v. Windsor was tied to the fact that in New York, there was a decision by the state to recognize same-sex marriages performed in other jurisdictions. Without the state’s approval, he seemed to be saying, the win is less legitimate.

There are several problems with this line of thinking, and ultimately the Sixth Circuit may not adopt it because of those problems.

Authored By Scottie Thompson – See the Full Story at Equality on Trial

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