Last month, the Supreme Court surprised the national news media by refusing to hear any of the seven same-sex marriage cases that had been pending.
Following that denial of review, the status of same-sex marriage appears to be based on an odd sort of federalism.
If you live in a region of the country governed by a federal appeals court that has found a constitutional right to same-sex marriage, you are free to enter into a same-sex marriage — even if your state recognizes only traditional marriage. For example, same-sex marriage is now legal in the areas governed by the U.S. Court of Appeals for the 4th Circuit, which includes Virginia, North and South Carolina, Maryland and West Virginia.
Certainly, the court decisions finding a constitutional right to same-sex marriage are faulty. The Supreme Court’s 1972 summary decision in Baker v. Nelson is, formally at least, still good law.
That decision — which implicitly held that there is no federal constitutional right to same-sex marriage — was not overturned by last year’s Windsor v. United States decision.
In fact, the Windsor decision overturned parts of the federal Defense of Marriage Act but didn’t even mention the Baker case. It seems that as far as the Supreme Court is concerned, states are free to enact same-sex marriage laws, or not to enact them.
It looked as if the Supreme Court would stand aside and allow unelected federal judges to impose same-sex marriage on the country one circuit at a time, until the 6th Circuit upheld the traditional marriage laws of Kentucky, Ohio, Michigan and Tennessee earlier this month.
Activists had challenged state marriage laws in each of these states. The Michigan plaintiffs, April DeBoer and Jayne Rowse, challenged the state’s 2004 constitutional amendment that defines marriage as “the union of one man and one woman …”
That law had been supported by millions of people in the Wolverine State. Some have pointed to religious beliefs; others have highlighted natural law and concerns for children. Perhaps some were led by less noble motivations.
But do a few bad apples mean that the law is invalid? Does the 14th Amendment mandate Michigan’s traditional marriage law be struck down because it violates equal protection or due process of law?
Breaking with every other federal appellate court that has considered this issue, the 6th Circuit said the 14th Amendment does not require striking down Michigan’s marriage law.
Now that there is one region of the country where traditional marriage laws have been held constitutional the Supreme Court is much more likely to resolve the issue.
The two Michigan plaintiffs already have filed their brief asking the Court to do so. This isn’t the first time the state of Michigan has appeared before the Supreme Court to defend a proposition passed directly by a majority of its citizens.
Last spring, in Schuette v. Coalition to Defend Affirmative Action, the Supreme Court upheld Michigan’s prohibition of using race as a factor in university admissions. As Justice Anthony Kennedy noted in his majority opinion:
Freedom embraces the right, indeed the duty, to engage in rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.
Will Justice Kennedy, author of the Windsor decision two terms ago, vote to uphold Michigan democracy yet again if the Supreme Court grants review in the 6th Circuit same-sex marriage case? Or will he decide that same-sex marriage is “beyond the capacity of the voters to debate and then to determine?” Only time will tell.
Originally appeared in The Detroit News.