POLITICS
11/06/2014 05:44 pm ET Updated Nov 07, 2014

In Blistering Dissent, Appeals Court Judge Slams Colleagues Who Upheld Gay Marriage Bans

WASHINGTON -- A federal appeals court judge on Tuesday issued a scathing dissent to an opinion supported by two of her colleagues who upheld bans on same-sex marriage in Michigan, Ohio, Tennessee and Kentucky.

In a 2-1 decision, the Sixth Circuit Court of Appeals overturned the rulings of lower federal courts that found same-sex marriage bans unconstitutional.

But in a blistering dissent, Martha Craig Daughtrey wrote that while her colleagues' opinion would make "an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy," it "wholly fails" to address the issue of whether a state constitution's ban on same-sex marriage violates the equal protection clause of the 14th Amendment. The majority opinion "treats both the issues and the litigants here as mere abstractions," Daughtrey wrote.

"Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win 'the hearts and minds' of Michigan, Ohio, Kentucky, and Tennessee voters to their cause," she wrote.

"But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status ... with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully legitimate parents at their children’s schools," she continued. "They seek to do this by virtue of exercising a civil right that most of us take for granted -- the right to marry."

Citing the Supreme Court ruling that struck down key provisions of the Defense of Marriage Act in 2013, Daughtrey said that the majority of the federal appeals court ignored the damage to the children of same-sex couples whose unions were not recognized.

People familiar with the Supreme Court ruling in the Windsor case, Daughtrey wrote, "must have said to themselves at various points in the majority opinion, 'But what about the children?' I did, and I could not find the answer in the opinion."

She added that it was "ironic that irresponsible, unmarried, 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."

In concluding her dissent, Daughtrey cited the oath of office she took more than 20 years ago when she was sworn into office. She said her colleagues "seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary." She wrote that the judiciary existed to "ensure that rights, liberties, and duties need not be held hostage by popular whims."

"If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams," she wrote.

Read Daughtrey's dissent below.

CORRECTION: An earlier version of this story said the court ruled 3-2. In fact, the ruling was 2-1.

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