There was one fundamental point of agreement between the two-judge majority and the dissenter on the appeals panel that last week upheld bans on gay marriage in Kentucky and three other states.
Judge Jeffrey Sutton opens the majority opinion with: "This is about change and how best to handle it under the United States Constitution."
"Better in this instance, we think, to allow change through the customary political processes," he concludes, meaning at the ballot box.
Senior Judge Martha Craig Daughtrey chose to open her dissent with a quote from the late Supreme Court Justice Benjammin Cardozo: "The great tides and currents which engulf the rest of men do not turn aside in their course to pass the judges by."
This tide will soon wash up to the Supreme Court. The eight same-sex couples who challenged Kentucky's ban said last week they would petition directly to the high court to hear the case, hoping to bypass an appeal to the full 6th Circuit U.S. Court of Appeals.
The Supreme Court should rule as soon as possible, acknowledging that those couples, their children and hundreds of thousands of others in the United States are humans who deserve the equal protection under the law guaranteed by our Constitution.
If it weren't so serious, the ironies would make this laughable.
Retired University of Kentucky law professor Carolyn Bratt, who married her longtime partner in New York last year, explained the complexities when 32 states recognize same-sex marriage and the others don't. Whether they're married changes from state to state as they travel, so they must always carry documentation to assure each has the power to make medical and other decisions for the other. "And of course, we have to be very careful about where we die," Bratt said, to protect the surviving spouse's rights.
In her stinging dissent, Daughtrey takes apart two of the usual arguments presented for opposing same-sex marriage: tradition and marriage as a conduit to producing and caring for children.
On tradition, she notes that the definition of legal marriage has already undergone massive change. For example, slaves were not allowed to marry legally and, it wasn't until 1955 that the court struck down laws forbidding marriage between people of different races. For centuries women had few if any rights within a marriage, being considered essentially an appendage of the husband once married. That left men free to take their wives' property, to rape and beat them as they saw fit, all inconceivable and illegal now.
"The marriage of same-sex couples constitutes merely the last wave in a vast sea of change," Daughtrey wrote.
As for children, Daughtrey points out that same-sex couples are much more likely to adopt than opposite-sex couples. But opponents of same-sex marriage argue a better solution is to encourage biological parents of unintended children into marriage. "How ironic that ... 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."
The sooner this wrong is righted the better.