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Dissenting 6th Circuit Judge: Anti-Gay Marriage Ruling ‘Fails’ On ‘Constitutional Question’

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The dissenting judge in today’s 2-1 6th Circuit decision upholding marriage bans in four states has written a stunning rebuke of her colleagues’ work.

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.

So begins the dissenting opinion – over 20 pages long – in today’s stunning 6th Circuit Court of Appeals decision that finds states can ban same-sex marriage. The ruling sets off a constitutional challenge that most likely will go to the U.S. Supreme Court.

(The complete ruling is embedded above, thanks to Equality Case Files.)

Judge Martha Craig Daughtrey wrote the dissent.

Readers may remember the audio of Judge Daughtrey’s fiery questioning during the case.

“It doesn’t look like the sky has fallen,” Judge Daughtrey told the court, in the ten-plus years same-sex marriage has been on the books in Massachusetts. 

Daughtrey’s opinion continues:

In the main, the majority treats both the issues and the litigants here as mere abstractions. 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. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status— de jure status, if you will—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.

Bam!

She then slams “what has come to be known as the “irresponsible procreation” theory: “that limiting marriage and its benefits to opposite-sex couples is rational, even necessary, to  provide for ‘unintended offspring’ by channeling their biological procreators into the bonds of matrimony. When we asked counsel why that goal required the simultaneous exclusion of same-sex couples from marrying, we were told that permitting same-sex marriage might denigrate the institution of marriage in the eyes of opposite-sex couples who conceive out of wedlock, causing subsequent abandonment of the unintended offspring by one or both biological parents. We also were informed that because same-sex couples cannot themselves produce wanted or unwanted offspring, and because they must therefore look to non-biological means of parenting that require  planning and expense, stability in a family unit headed by same-sex parents is assured without the benefit of formal matrimony.”

But, as the court in Baskin pointed out, many “abandoned children [born out of wedlock to biological parents] are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.” Id. How ironic that irresponsible, unmarried, opposite-sex couples in the Sixth Circuit who produce unwanted offspring must be “channeled” into marriage and thus rewarded with its many psychological and financial benefits, while same-sex couples who become model parents are punished for their responsible behavior by being denied the right to marry. As an obviously exasperated Judge Posner responded after puzzling over this same paradox in Baskin, “Go figure.”

And Judge Daughtrey goes on to denigrate — appropriately — the testimony given by none other than Mark Regnerus.

To counteract the testimony offered by the plaintiffs’ witnesses, the defendants presented as witnesses the authors or co-authors of three studies that disagreed with the conclusions reached by the plaintiffs’ experts. All three studies, however, were given little credence by the district court because of inherent flaws in the methods used or the intent of the authors. For example, the New Family Structures Study reported by Mark Regnerus, a sociologist at the University of Texas at Austin, admittedly relied upon interviews of children from gay or lesbian families who were products of broken heterosexual unions in order to support a conclusion that living with such gay or lesbian families adversely affected the development of the children. Regnerus conceded, moreover, that his own department took the highly unusual step of issuing the following statement on the university website in response to the release of the study: [Dr. Regnerus’s opinions] do not reflect the views of the sociology department of the University of Texas at Austin. Nor do they reflect the views of the American Sociological Association which takes the position that the conclusions he draws from his study of gay parenting are fundamentally flawed on conceptual and methodological grounds and that the findings from Dr. Regnerus’[s] work have  been cited inappropriately in efforts to diminish the civil rights and legitimacy of LBGTQ partners and their families. In fact, the record before the district court reflected clearly that Regnerus’s study had been funded by the Witherspoon Institute, a conservative “think tank” opposed to same-sex marriage, in order to vindicate “the traditional understanding of marriage.”

And then, bam! again.

Presented with the admitted biases and methodological shortcomings prevalent in the studies performed by the defendant’s experts, the district court found those witnesses “largely unbelievable” and not credible.

 

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News

‘His Heart Just Ain’t in It’: Report Reveals Trump’s ‘Achilles Heel’

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December 10, 2025

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Americans — it is becoming increasingly clear — are struggling to pay for basic necessities, like groceries, utility bills, health care, housing, and transportation. This is President Donald Trump’s “blind spot” and “Achilles heel,” according to Politico Playbook, based on a just-released Politico poll which calls its findings “a grim portrait of spending constraints.”

“Half of those surveyed said they find it difficult to pay for food. And a majority, 55 percent, blame the Trump administration for the high prices — even as the White House emphasizes its focus on affordability and the economy ahead of the midterm,” Politico noted.

On health care — one of the top concerns along with food and housing — nearly half of American adults find it “difficult” to afford. About one quarter of Americans (27%) have skipped a doctor’s visit or a prescription dose (23%) because of cost.

READ MORE: ‘Reality Problem’: Columnist Says Trump ‘Isn’t Even Trying’ to Honor His Promises

Pointing to Trump’s Tuesday night Pennsylvania rally, where he read the script and ad libbed his thoughts — “calling affordability a ‘hoax’ — before admitting he’s no longer ‘allowed’ to use the phrase,” Playbook reported that the president “made clear his lack of conviction in the whole premise.”

He mocked the word “affordability,” his own price charts, his pre-prepared speech, and “admitted he was only on tour at the urging of chief of staff Susie Wiles.”

“Trump revived his ill-advised line that it’s fine if parents can’t afford so many toys and pencils for their kids now prices are higher due to tariffs. ‘You don’t need 37 dolls for your daughter,’ he told the crowd. ‘Two or three is nice.'”

READ MORE: ‘Loyalty to the President’: Former Civil Rights Staff Expose Trump-Era ‘Purge’ Inside DOJ

This speech was supposed to be — according to the White House — “a positive economic, a focused speech, where he talks about all that he and his team has done to provide bigger paychecks and lower prices for the American people.”

After detailing many other off-script remarks, Playbook reported, “None of this should be surprising. We all know Trump likes to ramble. ‘I love the weave,’ he mused at one point. ‘If I read what’s on the teleprompter, you would all be falling asleep right now.’ On this topic, his heart just ain’t in it.”

“How much does all this matter?” Playbook asked. “Potentially, quite a lot. In theory, this was the first date of a multi-leg tour running right through 2026. If Trump doesn’t hone his messaging on affordability, it’s going to create a lot more ammunition for opponents over the next 11 months.”

READ MORE: ‘Appearance of Quid Pro Quo’: Sotomayor Confronts GOP Lawyer in Campaign Finance Argument

 

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‘Reality Problem’: Columnist Says Trump ‘Isn’t Even Trying’ to Honor His Promises

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17 hours ago

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December 9, 2025

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A Wall Street Journal opinion columnist is blasting President Donald Trump’s policies and remarks, warning that the affordability issue “could sink” his presidency.

Trump is underwater on his handling of inflation, and will deliver a speech in Pennsylvania on Tuesday evening that the White House says will be “a positive economic, a focused speech, where he talks about all that he and his team has done to provide bigger paychecks and lower prices for the American people.”

But columnist William A. Galston says “there’s a problem: Mr. Trump isn’t buying it. He has denounced the focus on affordability as a Democratic ‘con job,’ a ‘scam’ and a ‘hoax.'”

READ MORE: ‘Loyalty to the President’: Former Civil Rights Staff Expose Trump-Era ‘Purge’ Inside DOJ

“Starting the day I take the oath of office,” Trump told voters last year on the campaign trail, “I will rapidly drive prices down, and we will make America affordable again.”

Galston noted: “The American people were listening, and they expect Mr. Trump to honor his promises. Right now, they couldn’t be blamed for thinking he isn’t even trying.”

And he blasted the president for ignoring the situation.

“’The reason I don’t want to talk about affordability is because everybody knows it is far less expensive under Trump than it was under sleepy Joe Biden,’ he said at a recent White House event. In other words: Keep moving, folks, nothing to see here.”

READ MORE: ‘Appearance of Quid Pro Quo’: Sotomayor Confronts GOP Lawyer in Campaign Finance Argument

Galston noted that economist Stephen Moore, an outside Trump adviser, “says that the president’s low standing on the affordability issue is a ‘messaging problem.’ It isn’t; it’s a reality problem.”

Americans know the problem when they see that some items “are especially unaffordable,” Galston added.

He pointed out that the cost of shelter — rents and mortgage — are up 3.6% over the past year.

Home insurance premiums, he said, are expected to rise 8%. Electricity is up 11% since January, the month Trump took office.

By “rescinding duties on some agricultural goods last month, including beef, bananas and coffee, Mr. Trump tacitly conceded that tariffs put upward pressure on prices,” Galston wrote, adding that removing those tariffs is not enough.

READ MORE: ‘Upend Political Map’: Trump Aides Expect Supreme Court Rulings to Help GOP in Midterms

 

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‘Loyalty to the President’: Former Civil Rights Staff Expose Trump-Era ‘Purge’ Inside DOJ

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20 hours ago

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December 9, 2025

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About 200 former attorneys and staff from the Civil Rights Division of the U.S. Department of Justice are warning of the “near destruction of DOJ’s once-revered crown jewel,” and what they call Attorney General Pam Bondi’s “demand” for “loyalty to the President, not the Constitution or the American people.”

“For decades, the non-partisan work of the Civil Rights Division at the United States Department of Justice (DOJ) has protected all Americans—especially the most vulnerable—from unfair treatment and unequal opportunities,” they write in a letter dated Tuesday. They added that “after witnessing this Administration destroy much of our work, we made the heartbreaking decision to leave—along with hundreds of colleagues, including about 75 percent of attorneys.”

Bloomberg Law reported on Tuesday that the DOJ’s Civil Rights Division will now focus only on “intentional discrimination,” and not “policies that may appear neutral but disproportionately affect racial minorities and other protected classes.”

READ MORE: ‘Appearance of Quid Pro Quo’: Sotomayor Confronts GOP Lawyer in Campaign Finance Argument

In their letter, the former attorneys and staff specifically state that they left the Civil Rights Division “because this Administration turned the Division’s core mission upside down, largely abandoning its duty to protect civil rights,” and that it “achieved this goal by discarding much of the Division’s most impactful work.”

The group blasted Attorney General Bondi, who, they said, “issued a series of memos that subverted the Division’s mission in favor of President Trump’s political agenda.”

“One stood out: it insinuated that DOJ attorneys were Trump’s personal lawyers, an assertion that struck at the heart of the agency’s independence. Bondi’s demand to us was obvious: loyalty to the President, not the Constitution or the American people.”

In another scathing section, they charged that Assistant Attorney General Harmeet Dhillon “focused her efforts on ‘driving [the Civil Rights Division] in the opposite direction’ of its longstanding purpose.”

READ MORE: ‘Upend Political Map’: Trump Aides Expect Supreme Court Rulings to Help GOP in Midterms

They allege she issued mission statements “that included fighting diversity initiatives instead of race-based discrimination, investigating baseless allegations of voter fraud rather than protecting the right to vote, and dropping any mention of the Fair Housing Act, a landmark 1968 law that protects Americans from landlords’ racial discrimination and sexual harassment.”

And they charge that the administration “demanded that we find facts to fit the Administration’s predetermined outcomes.”

“Having no use for the expertise of career staff, the Administration launched a coordinated effort to drive us out,” they wrote. “The campaign to purge staff culminated in Dhillon encouraging everyone to resign after a period of paid leave while threatening layoffs if enough staff did not accept.”

Christine Stoneman, one of the letter’s signatories, told Bloomberg Law, “It is a sad commentary that in this anniversary of the Civil Rights Division, the Trump administration has chosen to eliminate a regulation that, for nearly 60 years has helped root out illegal race and national origin discrimination by recipients of federal funds.”

READ MORE: White House Tees Up Trump Speech With ‘Con Artists’ Blast at Democrats

 

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