Judge O’Scannlain of the 9th Circuit has fallen out of the boat in declaring “we have ignored another circuit’s reasoned contribution to the [gay marriage] debate.” Latta v. Otter (9th Cir., pet. for rehearing en banc denied, January 9, 2015) (Scanlon, J., dissenting). Rather, it is the 6th Circuit and Judge O’Scannlain that have ignored the clear mandate of the U.S. Constitution.
First, I would disagree with Judge O’Scannlain’s characterization that the 6th Circuit’s decision in DeBoer v. Snyder (6th Cir. 2014) is a “reasoned contribution” to the debate. Here’s why. Equality is the quintessential core America – “all men are created equal.” Admittedly, the Declaration of Independence is not our charter of government and equality was not firmly embedded in the original test of the Constitution. It took the Civil War and the 14th Amendment to steer us back to the legal mandate of equality: “nor shall any State deprive . . . any person . . . equal protection of the law.”
Second, Judge O’Scannlain apparently believes that minority rights are subject to vote and equal protection of the law does not apply to gay persons. He and Christian Dominionists are wrong. The purpose of the Bill of Rights and a number of other amendments was to protect minority rights by removing them to popular vote.
Third Judge O’Scannlain’s characterization of a “clear circuit split” is stretched. The 6th Circuit’s decision is an outlier among the circuits. There is nothing to be gained at this point by the 9th Circuit hearing Latta v. Otter and companion cases en banc. Moreover, gay marriage cases are already pending before the Supreme Court. Thus there is no need at this point for circuit courts to expend further judicial energy considering gay marriage.
And as a final point, Judge O’Scannlain’s parsing of the Supreme Court’s decision in United States v. Windsor, 570 U.S. __ (2013) (Docket No. 12-307) to argue that the Court has not decided the gay marriage issue is underwhelming. While O’Scannlain is literally correct, Justice Kennedy writing for the majority in Windsor said of the Defense of Marriage Act (DOMA): “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
Even Justice Scalia, dissenting in Windsor, recognized “the majority arms well every challenger to a state law restricting marriage to its traditional definition.” It's time for Judge O’Scannlain to climb in the life boat and raise the white flag of equality.