To the endless barrage of court cases holding gay marriage is a constitutional right, add one contrary view to the mix:
The same-sex marriage movement lost its first major case in a federal appeals court Thursday after a lengthy string of victories, creating a split among the nation’s circuit courts that virtually guarantees Supreme Court review.
The 2-1 ruling from the U.S. Court of Appeals for the 6th Circuit reversed district court rulings that had struck down gay marriage bans in Michigan, Ohio, Kentucky and Tennessee.
More important, it gives Supreme Court justices an appellate ruling that runs counter to four others from the 4th, 7th, 9th and 10th circuits. Those rulings struck down same-sex marriage bans in Virginia, Indiana, Wisconsin, Oklahoma, Utah, Idaho and Nevada, leading to similar action in neighboring states.
The opinion, in my view, is too far wordy and filled with apologetics — but one key passage stands out:
Yes, the Fourteenth Amendment is old; the people ratified it in 1868. And yes, it is generally worded; it says: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.
And that should be the beginning and end of the analysis.
So yes: now, the Supreme Court will probably take the cases up. And yes: Anthony Kennedy will get his day in the sun yet again, as he substitutes high-flown phrases and fuzzy yet peculiarly self-righteous reasoning to twist the Fourteenth Amendment into something it was never intended to be.
It won’t be the first time, and it won’t be the last.