U.S.GOP Sen Portman Supports Gay marriage. He Talks about the Court that went for Gay Bans
Sen. Rob Portman supports gay marriage. He'd prefer that the public come to accept it and support it rather than have courts decide. The appeals court judges who refused Thursday to strike down anti-gay marriage bans in Ohio and three other states share a common view – one seemingly missed by many, pro or con -- with U.S. Sen. Rob Portman.
Rob Portman, an Ohio Republican, supports gay marriage. That makes him a political symbol of hope within the gay-marriage movement. His position, known publicly since March 2013, has forced him to assure conservatives that he has not abandoned other bedrock issues such as abortion opposition.
Portman says he sees freedom to marry as fundamentally conservative.
Yet Portman prefers that the right not be accomplished by judicial fiat. And neither does the Sixth Circuit U.S. Court of Appeals, based in Cincinnati.
The court, in a 2-1 ruling Thursday, characterized the issue as a choice -- of either allowing "the democratic processes begun in the states to continue," or using its judicial authority to force an end to gay-marriage bans. Should gay marriage, considered a constitutional right by a growing number of jurisdictions, be struck down by the courts or, as Judge Jeffrey Sutton, an appointee of President George W. Bush, wrote, through the will of voters?
"Who decides?" wrote Sutton, in an opinion joined by Judge Deborah Cook. "Is this a matter that the national Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?"
The court chose the latter, refusing to rule that laws banning or affecting gay marriage in Ohio, Kentucky, Michigan and Tennessee violate the Constitution’s due process or equal protection clauses.
Like Portman, Sutton said that "we cannot deny thinking the plaintiffs deserve better." But Sutton suggested that victory for gay couples could come through legislation or new ballot initiatives, the same kind that millions of voters used in states like Michigan and Ohio a decade ago to make gay marriage unconstitutional.
This is an ongoing process, Sutton said. "In some states, people have re-amended their constitutions to broaden the category of those eligible to marry," he wrote. In other states, including Ohio, "the people seem primed to do the same but for now have opted to take a wait-and-see approach of their own as federal litigation proceeds." But some subjects, even if divisive and profound, Sutton said, deserve to be within the voters' reach.
Critics called Sutton’s reasoning tortured, and in a stinging dissent, Judge Martha Craig Daughtrey wrote that Sutton had drafted an opinion that "would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy."
Daughtrey said that "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."
Portman has not yet commented on the Sixth Circuit decision. But the ruling is consistent with the senator's recent stance.
Portman has said he believes the best course is for voters to come to the realization that same-sex couples deserve the right to marry – and for the change to come from the democratic process, not the courts.
The senator laid this out most clearly when telling a small group of reporters on March 14, 2013, that he no longer opposed same-sex marriage. Meeting with Washington-based reporters for The Plain Dealer, the Columbus Dispatch, the Dayton Daily News and the Cincinnati Enquirer, Portman explained that his college-age son, Will, had come as gay. He said this prompted him to reconsider his long-held views, and he came around to thinking that gay marriage should be legal.
But Portman said he preferred that other Americans come around on their own and through public discourse. Citizens have the means to make the necessary legal changes, he suggested.
"The process of citizens persuading fellow citizens is how consensus is built and enduring change is forged," Portman wrote in a Columbus Dispatch op-ed right after his public change of heart. "That's why I believe change should come about through the democratic process in the states. Judicial intervention from Washington would circumvent that process as it's moving in the direction of recognizing marriage for same-sex couples. An expansive court ruling would run the risk of deepening divisions rather than resolving them."
The gay-marriage movement cheered Portman’s reversal in 2013, as it did the string of judicial rulings that, until Thursday, felled one state ban after another.
But Portman's preferred method of change has largely gone unnoted amid the cheers. Asked about it, Evan Wolfson, founder and president of Freedom to Marry, a group working to win marriage rights nationally, said in an email:
"In America, we believe that there are basic freedoms and rights that should not be up to a vote, or left to the mercy of politicians or persuasion; that is why we have a Constitution and the courts that exist to enforce its guarantees and protections. It is no answer to people unfairly denied the freedom of speech or freedom of religion or freedom to marry that if they wait long enough or work hard enough, maybe, just maybe, some day they will get the rights that the Constitution promises.
"While I am happy that our work and persuasion has indeed over time moved a majority of the American people to support the freedom to marry, we are one country, with one Constitution. Americans, including Ohioans, should not have to fight state by state, vote by vote, year by year to be able to marry the person they love right now, no matter what state they live in, including Ohio.”
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