Judicial dissents often make for the most important, interesting and entertaining reading in major cases.
Now comes Judge Martha Craig Daughtrey of the Sixth Circuit Court of Appeals, bidding to take her place next to great dissenters Supreme Court Justice Ruth Bader Ginsburg and the first Justice John Marshall Harlan with a penetrating and uncompromising minority opinion in the latest gay marriage case.
In that decision, handed down Thursday, the appeals court ruled 2-1 to uphold gay marriage bans in Michigan, Ohio, Kentucky and Tennessee. It was the first defeat for gay marriage after a long string of court victories, including the overturning of the infamous Defense of Marriage Act by the Supreme Court last year.
Daughtrey, a Clinton appointee, identifies the central irrelevancy of the majority's argument upholding the bans: that they were enacted by voters, and thus deserve overwhelming deference from the courts. A panel of three judges simply doesn't have the right, the majority says, "to make such a vital policy call for the thirty-two million citizens who live within the four states of the Sixth Circuit."
Never mind the 14th Amendment, which gives the federal government the authority to prevent the states from abridging Americans' civil rights, the majority wrote. Its drafters (in the 1860s) didn't understand it "to require the States to change the definition of marriage."
Daughtrey summons a "quick answer" to this argument: The drafters "undoubtedly did not understand that it would also require school desegregation in 1955 of the end of miscegenation laws across the country." Judicial rulings, she observes, have been the key to ending these and other examples of racial discrimination, not "the democratic election process to which the majority suggests we should defer."
What most distinguishes Daughtrey's dissent from the majority opinion written by Judge Jeffrey Sutton and joined by Deborah L. Cook, both George W. Bush appointees, is the presence of the flesh-and-blood plaintiffs. They exist in the majority opinion only as abstractions. Daughtrey tells their stories.
Among them are Michigan plaintiffs April DeBoer and Jayne Rowse, unmarried lesbians and nurses who have lived together for eight years. in that time they have adopted three children, two of them special needs kids--actually, because Michigan doesn't allow gay couples to adopt, Rowse has adopted two and DeBoer the third.
They coordinate their schedules to make sure one is always at home with the children, and undeniably provide exactly the kind of "close-knit, loving environment" that marriage is supposed to foster, and that the majority bizarrely contends would suffer across the circuit if gay marriage were upheld. If something were to happen to either of the parents, there would be no legal guarantee keeping the family together.
Daughtrey is perplexed by the majority's flat refusal to absorb the findings of the four other federal appeals courts that have overturned gay marriage bans, making the appellate level, until now, unanimous. "Because the correct result is so obvious," she writes, it's tempting to speculate that the majority upheld the bans precisely to create a circuit split requiring an explicit ruling on gay marriage from the Supreme Court.
That's not the only bizarre element of the majority opinion. At its very outset, Sutton acknowledges that the legalization of gay marriage in the U.S. is a foregone conclusion. "From the vantage point of 2014," he writes, "the question is not whether American law will allow gay couples to marry; it is when and how that will happen."
Since 2003, he adds, 19 states and the District of Columbia have legalized gay marriage. Despite his insistence that it's not the courts' place to do so, he acknowledges that only in some of these states has this happened by legislation or voter initiative. In others, the change has been dictated by state or federal courts. "Nor does this momentum show any signs of slowing." (Indeed, a state judge in Missouri overturned that state's gay marriage ban on Wednesday, just as the appeals court was handing down its ruling for four neighboring states.)
This places the majority in the admitted position of trying to hold back an inexorable tide. That didn't work for King Canute in ancient times, and it's not likely to work now. And it's proper to ask, as Daughtrey does in her closing, who if anyone benefits from a deliberate narrowing of the fundamental civil and legal right of marriage.
She reminds her colleagues that they all took a solemn oath to uphold the rights of all persons. "If we in the judiciary do not have the authority, indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate," she writes, "our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams."
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