Gay marriage should head to highest court

The Detroit News

When the U.S. 6th Circuit Court of Appeals upheld laws banning gay marriage in Michigan, as well as in Ohio, Tennessee and Kentucky, the ruling paved the way for the contentious issue to go to the U.S. Supreme Court. The justices should take this opportunity to settle the constitutionality of bans on same sex unions.

The 6th Circuit diverged from other appeals courts, which have struck down similar laws prohibiting marriage between same-sex partners. Splits among circuit courts are one of the aspects the Supreme Court considers before taking on a case. Last month, the High Court deferred similar cases because there was no dissension in previous lower court rulings.

The 6th Circuit changed that. In addition, the Michigan couple, April DeBoer and Jayne Rowse, who sparked the lawsuit in this state have said they will continue to fight for their right to marry.

Judge Jeffrey Sutton, writing for the majority in the 2-1 decision, defended Michigan voters' right to amend their Constitution, arguing against invalidating "laws every time a new and allegedly better way of addressing a policy emerges." State voters approved the Michigan Marriage Amendment in 2004, prohibiting gay marriage.

This past March in Detroit, U.S. District Judge Bernard Friedman ruled that Michigan's ban was unconstitutional because it denies same-sex couples equal protection under the law. He overturned the gay marriage ban on the same equal protection grounds he cited in 2001 to strike down the University of Michigan Law School's use of affirmative action in admissions.

In recent months, four other circuit courts have overturned statewide gay marriage bans. And last year, the Supreme Court overturned the federal Defense of Marriage Act. At least 33 states and the District of Columbia now recognize same-sex marriage, according to the National Conference of State Legislatures.

Since marriages are legal contracts, consistent guidance on whether the Constitution permits bans, and whether unions permitted in one state must be honored by another, is essential.

Without that guidance, the 6th Circuit had little choice but to tread lightly in overturning a voter-approved law. Although many polls show public opinion has shifted toward support of same-sex marriage, even among a growing number of conservatives, morphing societal views aren't a basis for tossing out ballot initiatives.

The better course would have been for Michigan citizens to vote again on gay marriage, which would likely be approved this time around.

But the Supreme Court should still take up this case. As Michigan Attorney General Bill Schuette says, "The sooner the U.S. Supreme Court rules, the better for Michigan and for the nation."

We agree. The Supreme Court justices will have to decide whether treating couples differently under the law simply because they are gay passes constitutional muster.