Federal Judge’s Missouri Pro-Marriage Ruling Takes Swipe At 6th Circuit Anti-Marriage Ruling

It’s not unusual for one court to refer to another court’s rulings in similar cases. But a federal judge seems to be admonishing a higher court’s flawed ruling. Is he?

Today, federal Judge Ortrie D. Smith issued a ruling striking down Missouri’s ban on same-sex marriage. The ruling was not unusual – over 50 rulings in support of marriage for same-sex couples have been made since last year’s Supreme Court DOMA decision, and only a handful in opposition.

One ruling opposing same-sex marriage, or, more accurately, one ruling supporting the constitutionality of state bans on same-sex marriage came yesterday from the 6th Circuit Court of Appeals.

That ruling, which many consider flawed, is based in part on the opinion of Judge Jeffrey Sutton.

Judge Sutton yesterday claimed that “the people” know best and their decision on the rights of the minority should be respected.

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.

It’s Judge Martha Craig Daughtrey‘s 6th Circuit dissent that so aptly frames that majority opinion of Judge Sutton.

She writes, “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.”

Judge Daughtrey adds, “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 short, she says, Judge Sutton is saying the will of the majority should be respected, not the will or rights of the minority.

Today, in what appears to be a rebuke of the higher court’s – of Judge Sutton’s ruling – is the ruling of Judge Ortrie D. Smith.

This is long but wholly worth reading:

“The Court does not take lightly a request to declare that a state law is unconstitutional,” Judge Smith writes. “Statutes are passed by the duly elected representatives of the people. Article I, section 33 constitutes the direct expression of the people’s will.”

It is not on a whim that the Court supplants the will of the voters or the decisions of the legislature. But it should not be forgotten that the Constitution is also an expression of the people’s will. Indeed, it is the paramount expression of the people’s will; it cannot easily be cast aside or circumvented by a vote of the citizens of a single state. 

[Bolding ours]

In other words, it seems Judge Smith is telling Judge Sutton, do your job.

Judge Smith continues:

Just as Missouri citizens cannot abridge the First Amendment by amending the Missouri Constitution, they cannot abridge the Fourteenth Amendment in that manner. As  Alexander Hamilton explained in describing the Constitution’s preeminent place in the rule of law: 

There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid. 

The Federalist No. 78 (Alexander Hamilton). Later, Hamilton described the importance of the judiciary’s role in insuring the Constitution’s role as the preeminent law of the Nation, stating the judiciary’s role includes: 

guard[ing] the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Id. It is the Court’s view that the provisions of this statute and this section of the Missouri Constitution contravene the United States Constitution. Having reached that conclusion, it is the Court’s obligation to give effect and force to the United States Constitution.

Pretty much a slap down, wouldn’t you say?

 

Image by StockMonkeys.com via Flickr