But today, the conservative 6th circuit broke the streak, and issued a ruling finding that marriage discrimination is okay. For some reason, the bulk of their argument is that the people should be able to decide. Circuit Judge Jeffrey Sutton wrote,
When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.
The problem is this. The Constitution exists in part to protect the rights of unpopular minorities from the tyranny of the majority. We do not put basic rights to the ballot. If we had, schools in the South would still be segregated, inter-racial marriage would still be illegal, and husbands could control a woman's property.
This was called out in a brilliant dissent by Judge Martha Daughtrey.
The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,” Daughtrey wrote in her dissent. “But as an appellate court decision, it 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. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it.This makes for a "circuit split" and the appeal to the Supremes is on its way. And then Chief Justice John Roberts and Justice Anthony Kennedy must decide what they want their legacies to be.