Same-Sex Marriage Ban Upheld in Four States … Good News?

In what should be a bit of good news, the same-sex marriage march has been temporarily halted in four states after a landmark Circuit Court decision upheld same-sex marriage bans in four states.

Circuit judge Jeffrey Sutton, who wrote the majority opinion, had this to say about the decision:

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.

In other words, it is better to allow people to make this decision among themselves, in local not national terms. That seems reasonable. But the dissenting paper, written by Democrat appointee Martha Craig Daughtry, attempted to take the moral high ground in opposition to Sutton’s populist approach:

If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

That is quite a stunning admission. What she is saying, in no uncertain terms, is that the majority should be over-ruled by a minority opinion when the majority opinion upholds what she thinks is a “fundamental wrong.”

People who agree with Daughtry might (and usually do) point to slavery as an example of what they’re talking about. Slavery was legal by the will of a majority within certain states, as we all have been told a million times. And, as the narrative goes, if slavery is wrong, it was okay for a minority to overrule the majority in order to end it, right? It’s a pleasant narrative for activist judges as it confirms that they really are the “heroes” in the slavery/civil rights story. But this narrative, and the people who keep citing it, fail to understand the nature of real social change. Slavery may have been made illegal, but its social consequences still haven’t been resolved even to this day. Because real change in a nation cannot be legislated.

But aside from all of that, this seemingly positive Circuit ruling against same-sex marriage will force a national decision on the issue. It is almost assured that this ruling, having created a contradiction in federal opinion, will lead to a resolution in the Supreme Court. And let’s be honest—that is exactly what same-sex marriage proponents want.

The Supreme Court has been almost obsessively reluctant to get involved in a national conversation on same-sex marriage. But this silence will not be allowed to continue after this. This is kind of a “damned if you do, damned if you don’t scenario” for people who oppose same-sex marriage. We obviously wanted someone to uphold states’ rights in this issue. But now that Jeffrey Sutton has done what we have asked, he may have just opened the door for a complete overthrow of any states’ rights in the issue. I guess only time will tell.

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