Though I haven't read the ruling (it doesn't sound like pleasant or worthwhile reading), I've read some analysis of it, such as the one from Ari Ezra Waldman of Towleroad. The ruling doesn't say whether or not same-sex marriage violates the Constitution. Instead, the lead judge, Jeffrey Sutton, goes on at length on why he's not allowed to rule on the underlying issue and must allow the state to do what it wants.
Last week I wrote about the case in Puerto Rico and how it was based on the 1972 dismissal by the Supremes of the Baker v. Nelson case. The Supremes said there was no "substantial federal question." Therefore, says Sutton, there is no case for me to consider.
And if that isn't enough of an excuse Sutton has a few more for us. (1) As in fine conservative tradition if it ain't in the Constitution it ain't a federal right. And "gay marriage" isn't in the Constitution. Um, dude, we don't want to get "gay married" we want to get married. (2) Also in conservative tradition, judges should leave as much power with the states and Congress as possible, let the legislative process work as it should. The customary political process is so "fair-minded." Perhaps that part was written before Tuesday's election – a remedy through this state legislature that just became more red? (3) Gosh, there's just millennia of tradition. (4) We need to proceed with caution. So if you want me to actually take up the case somebody better give me explicit instructions.
The dissenting judge, Martha Daugherty, isn't buying.
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 is "who should decide?" – and leads us through a largely irrelevant discourse on democracy and federalism.She goes on to point out the judiciary was set up to avoid tyranny of the majority. And then she accuses her colleagues of betraying their oaths by not doing their jobs.
Waldman reminds us that before the Supremes decided not to rule a month ago (only that?) Ruth Bader Ginsberg (I hope she lasts another two years!) said there is something that might prompt the Supremes to take up same-sex marriage – whether the 6th Circuit upheld bans. She specifically mentioned the 6th Circuit. And now the 6th Circuit has done exactly that.
An appeal to the Supremes is in the works. Perhaps there will be a ruling by June.
As for that rulng, Ted Olson, lead lawyer in the Calif. Same-sex marriage case that made it to the Supremes a year ago, says the nation has reached a "point of no return." The Supremes allowing same-sex couples in all those states to marry and then snatching that right away would be inhuman and cruel and inconsistent with what it has said so far.