By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Friday, November 7, 2014.
The federal 6th Circuit upheld bans on same-sex marriages in four states. Other circuit courts have come out the other way. We now have a circuit split. If petitions for certiorari are filed, we could have a U.S. Supreme Court decision this summer.
I blog about the same-sex marriage controversy a lot. Different states have different laws recognizing same-sex marriages, making the status of same-sex marriages in dispute. This creates interstate chaos. We need the Supreme Court to weigh in.
The Sixth Circuit Court of Appeals decision is important, because it creates a circuit split over the issue. A circuit split makes it much more likely that the Supreme Court will hear the case.
The Sixth Circuit opinion tried to show that laws banning same-sex marriage can meet “rational basis” scrutiny, the lowest level of constitutional review because gays and lesbians are not disenfranchised and are not a politically “powerless” minority.
A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States.
May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result?
In accepting these justifications for the four States’ marriage laws, we do not deny the foolish, sometimes offensive, inconsistencies that have haunted marital legislation from time to time.
States will hand some people a marriage license no matter how often they have divorced or remarried, apparently on the theory that practice makes perfect.
The traditional definition of marriage denies gay couples the opportunity to publicly solemnize, to say nothing of subsidize, their relationships under state law.
Do the benefits of standing by the traditional definition of marriage make up for these costs? The question demands an answer – but from elected legislators, not life-tenured judges.
What the opinion lacks in persuasiveness it more than makes up for in creating a circuit split that could prompt a grant of certiorari by the Supreme Court and end the uncertainty of status, and the interstate chaos that the current differences in state laws create.
The opinion in DeBoer v. Snyder can be read here.