I don’t blame U.S. Sen. Rob Portman for not having a firm grasp on the political philosophy of Jemmy Madison, our fourth president and known in his lifetime as the “Father of the Constitution.” Portman’s walking a wire, as he looks longingly for a place in the Grand Old Party Presidential Pageant of 2016.
I do, however, find more than a little troubling the fact that two of three members of the 6th U.S. Circuit Court of Appeals, constitutionally speaking, can’t find their ass with both hands. A decision last week by that court upheld anti-gay marriage laws in Ohio, Kentucky, Tennessee and Michigan.
“It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure,” Madison wrote in Federalist Paper 51.
In a government where a majority of citizens can vote to pass laws that apply not just to themselves but to the population as a whole, judicious consideration must be given to distinguish whether these laws are reasonable and fair to a given minority, or whether they are in fact unreasonable and unfairly target that minority.
That’s right, judicious consideration: The judiciary.
From the Cleveland Plain Dealer:
Portman came out publicly in support of same-sex marriage in March 2013, saying his new viewpoint came about after his son Will, then in college, told him he was gay.
Yet Portman, a first-term senator who was fundraising chairman for the GOP’s successful Senate election effort this month, has said from the start that he believes the courts are not the best place to resolve the matter.
That view is consistent with last week’s ruling by the 6th Circuit appeals court. In a 2-1 opinion, appeals Judge Jeffrey Sutton wrote, “Who decides? Is this a matter that the national Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?”
Back when the U.S. Constitution was being written, the thought behind the need for protection from tyranny of the majority was based on religious intolerance prevalent at the time. Precautions were made to protect religious minorities and enshrined by the separation of church and state found in the first amendment to our Bill of Rights.
Religious intolerance still exists. In this scenario it exists in the form of laws that deny marriage to a class of people based on certain religious/moral beliefs espoused by another group of people. They are suffering the tyranny of the majority. Equal protection under the law, guaranteed by the 14th Amendment, has been violated.
It is the government’s duty to protect against this, as directed in the U.S. Constitution, and that is exactly where the 6th Circuit court has failed, and why the U.S. Supreme Court must now step in.
Equal protection under the law cannot be left to the whims of popular fancy. These laws banning same-sex marriage unjustly respect a certain religious/moral code over others and result in a violation of basic due process and equal protection.
In a blistering dissent, Judge Martha Craig Daughtrey wrote that “as an appellate court decision, (the majority opinion) 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.”
When this case goes to SCOTUS, as it will, opponents will argue, as they always do, that the marriage bans “protects traditional marriage from harm, that marriage exists for ‘responsible procreation,’ and that children are better off when raised by a mother and a father.”
They will fail because they will not be able to present one fact to support any of these claims. They will fail because there is no evidence that same-sex marriage affects heterosexual marriage in any way. They will fail because there is no evidence that heterosexuals make better parents. They will fail because they will be unable point to a precedent of society denying marriage rights to bad parents, let alone society denying marriage rights to persons who don’t produce offspring.
Rob Portman says that he thinks society is coming around on the issue.
“I think states will end up recognizing same-sex marriage because it’s the right thing to do,” he said. “I think it’s better to do it through the democratic process.”
That is a treacherous path to tread.
There is no justification for denying equal rights to those so entitled while waiting for the democratic process to come around, and Portman declines to even attempt to provide one. There is no rationale for the continued infliction of legal harm upon a minority population when a judiciary bound by the supreme law of the land can and must bring justice. The constitution guarantees these rights, and they must be afforded without delay.
Of course, American Family Association’s Tim Wildmon cheered the 6th Circuit decision after his head exploded when Republican-appointed Judge Vaugn R. Walker ruled against California’s same-sex marriage ban, calling it a “tyrannical, abusive and utterly unconstitutional display of judicial arrogance.”
But it is these laws themselves that are a tyrannical, abusive and utterly unconstitutional display of religious and moral arrogance. As a nation, we should be better than that. As a people, we should be more tolerant than that. As patriots, we should be more Constitutionally honest than that.
David DeWitt is a journalist and universal minister based out of Athens, Ohio. He has also written for Government Executive online, the National Journal’s Hotline, and The New York Observer’s Politicker.com. He can be found on Twitter @TheRevDeWitt.