Back in 2004, I was part of the 62% of Ohio voters who supported a referendum to amend the Ohio Constitution to define marriage as “a union between one man and one woman.” Last week, the Sixth Circuit Court of Appeals decided, in a 2 to 1 decision, that my vote—and those of some 3. 3 million other Ohioans—still counted.
Although Judge Sutton hinted in his opinion that he would welcome the legalization of gay marriage, he insisted that such legalization had to come from the voters, not the courts: “If a federal court denies the people suffrage on an issue long thought to be within their power, they deserve an explanation. We, for our part, cannot find one.” Judicial deference to the democratic process was a theme emphasized repeatedly in the court’s decision: “Not one of the plaintiffs’ theories, however, make the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of the voters.” Judge Sutton even paid tribute to a virtue not often emphasized in law schools: “A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world.” And Judge Sutton recognized that any judicial redefinition of marriage would not stop at gay marriage: “If it must be constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.”
It was encouraging to see that opposition to judicial imperialism has not yet vanished from the bench. Apart from the dreadful substance of the decision, Roe v. Wade also poisoned American politics by disenfranchising those of us who believe abortion should be illegal. The plaintiffs in gay marriage cases want to do the same to those of us who believe that marriage is “a union between one man and one woman.” Such a strategy has many benefits: if the Supreme Court decides that it is unconstitutional to give legal expression to certain beliefs, the opponents of those beliefs have won a victory in all 50 states, and one that, in practical terms, has proven nearly impossible to overturn. Plus, those holding those beliefs can be branded as opponents of the Constitution, and, over time, the very existence of the decision will change public opinion, just as Roe v. Wade helped to undermine opposition to abortion. The left certainly has come to believe that any victory denied it by the voters should be given it by the judges. Many times, in fact, the left would rather not even bother trying to convince the voters. Indeed, as Judge Sutton noted in his decision, opponents of Ohio’s gay marriage ban decided that their best strategy was litigation, not another referendum.
Judge Sutton was joined in his opinion by Judge Cook; Judge Daughtrey dissented. For those who keep track of such things, Sutton and Cook were both appointed by George W. Bush; Daughtrey was appointed by Bill Clinton.
Thomas Piatak is a contributing editor to Chronicles: A Magazine of American Culture. He writes from Cleveland, Ohio.