Thursday’s decision by the Sixth Circuit upholding four states’ ban on same-sex marriage humored many of conservatives’ favorite arguments, but the 2–1 decision included a fiery dissent by Judge Martha Craig Daughtrey, a Clinton appointee. While Daughtrey’s opinion challenged many of the majority’s arguments, she made an overall point that encapsulates what’s lacking — and harmful — about the most modern arguments against marriage equality.
“In the main, the majority treats both the issues and the litigants here as mere abstractions,” she wrote. “Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win ‘the hearts and minds’ of Michigan, Ohio, Kentucky, and Tennessee voters to their cause.”
That’s the biggest divide between the two sides on same-sex marriage: is it an issue, or is it about people?
She specifically talks in detail about the Michigan plaintiffs, April DeBoer and Jayne Rowse, a lesbian couple who have been together for eight years and are raising three children, two of whom are now categorized as having “special needs.” Each of the children is only legally adopted by either DeBoer and Rowse, because Michigan prevents them from co-adopting as a same-sex couple. Daughtrey said she’d have no problem upholding the district court ruling in their favor, noting that “the State of Michigan allows heterosexual couples to marry even if the couple does not wish to have children, even if the couple does not have sufficient resources or education to care for children, even if the parents are pedophiles or child abusers, and even if the parents are drug addicts.”
In contrast, the Heritage Foundation’s Ryan T. Anderson was eager to praise the Sixth Circuit’s opinion, but he, too, ignored the actual impact of the decision on the people who filed the original complaints. Instead, he focused on the right of the majority to vote on these issues, the idea that the children of man-woman couples are somehow more special and in need of protection (especially because they might be accidental), and the idea that there might be unforeseen consequences to legalizing same-sex marriage. In the meantime, there are quite apparent consequences for the families in these four states that go unacknowledged.
Daughtrey describes them as families “who want to achieve equal status… with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully legitimate parents at their children’s schools. They seek to do this by virtue of exercising a civil right that most of us take for granted — the right to marry.”
The majority’s opinion reflects a similar sentiment found at the recent Ethics and Religious Liberty Commission conference, where Southern Baptist pastors gathered to consider how best to address the questions around homosexuality and marriage. They were guided not by what would actually do the most right by LGBT people, but by what they believe to be truths about marriage and God’s intent for gender and sexuality. In doing so, they felt their approach was true, but they blinded themselves to the effect on others, the harms that LGBT experience as a result of their rhetoric.
In her conclusion, Daughtrey rebuked the majority’s notion that a simple vote by the public that appeals to tradition deserves more merit than the actual constitutional harms a minority experiences as a result. “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,” she wrote, “our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”
While some of the plaintiffs are still debating whether to appeal to the full Sixth Circuit or directly to the Supreme Court, the ACLU has announced they’re skipping right ahead to the highest court. The ACLU represented James Obergefell of Ohio, who sought to have his marriage recognized on the death certificate of his late husband, John Arthur. “It is shameful and wrong that John Arthur’s death certificate may have to be revised to list him as single and erase his husband’s name as his surviving spouse,” attorney Chasey Strangio explained.