Gay Marriage Ruling Is Conservative, and Wrong

The U.S. Court of Appeals for the Sixth Circuit's refusal to declare a constitutional right to gay marriage is wrong. But it isn’t wrong in any simple way. 
Not so fast?

The U.S. Court of Appeals for the Sixth Circuit's refusal to declare a constitutional right to gay marriage is wrong. But it isn't wrong in any simple way. The opinion isn't grounded in homophobia or bias. It isn't grounded in head-in-the-sand originalism. The decision, written by George W. Bush appointee Judge Jeffrey Sutton, is grounded in a theory of judicial restraint -- and not even judicial restraint generally, but a very modest theory of judicial restraint appropriate to appellate courts that are subordinate to Supreme Court precedent. So if you want to explain why the opinion is wrong, you can't just say, "Gay marriage should be a basic right." You have to explain why the court should have said so despite the Supreme Court's unwillingness thus far to reach that conclusion.

To continue reading this article you must be a Bloomberg Professional Service Subscriber.