Saturday, November 8, 2014

In the Words of the High Plains Drifter

On Thursday, a three-judge panel of the United States Court of Appeals for the Sixth Circuit, overturned lower court rulings in Tennessee, Kentucky, Ohio and Michigan that had declared same-sex marriage legal in those states.  By a 2-1 vote, the court (in an opinion authored by the Hon. Jeffrey S. Sutton) declared that the determination of the legality of same-sex marriage should rest not with an "inferior" Federal court (meaning an intermediate appellate court as opposed to a court comprised of real stinkers) but should be determined either through the democratic process or by the Supreme Court of the United States.  His words.  Not mine.   Reading his words however did make me wonder just what it would take to have the Hon. Bridget Mary McCormack consider trading her responsibilities as a Justice on the Michigan Supreme Court for a seat on the United States Court of Appeals for the Sixth Circuit.  It appears that her services are needed beyond the geographical boundaries of the state she calls home. 

If you have never had the pleasure of watching a Judge of the United States Court of Appeals for the Sixth Circuit punt, then read Judge Sutton's opinion.  If you have never had the pleasure of watching one member of an appellate court absolutely excoriate her colleagues through the power of her language, then read the dissent of Judge Martha Craig Daughtrey, which begins on Page 43 of the full-text decision (53 of 75 in the PDF).   Her Honor's dissent's opening paragraph concludes with this vignette: 

Instead, the majority sets up a false premise—that the question before us is “who should decide?" - and leads us through a largely irrelevant discourse on democracy and federalism.   In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent

The Sixth Circuit's opinion ensures that Judge Sutton's wish shall be granted and the legality of same-sex marriage shall now be taken up by the Supreme Court of the United States, which shall now be obligated to resolve the rift between the Sixth Circuit and the four other Circuits in which bans on same-sex marriage have been struck down as violating the Equal Protection Clause of our Constitution.   In October, the Supreme Court declined to hear appeals taken from the Circuit Court decisions that had stricken same-sex marriage bans, which delivered what has been described as a "tacit" victory to same-sex marriage.  

What that means the Court shall do when confronted with having to make a decision to resolve the dispute between the various Federal Circuits I do not pretend to know...

...which is why I hope they do nothing more or less than heed the wisdom of the High Plains Drifter.


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