Gay Marriage, The 6th Circuit, Jeffrey Sutton, and the Supreme Court
Justice Ginsberg |
A few months ago liberal Supreme Court Justice Ruth Bader Ginsberg
was asked what the Court was going to do this year about lower federal court cases
striking down gay marriage bans enacted by many states throughout the
country. She gave the cryptic reply that
observers should pay attention to what happens in the 6th Circuit
Court of Appeals. Court watchers knew
what she meant: what would Judge Jeffrey Sutton do?
Judge Sutton [pictured in the first photo above] is one of the most respected jurists in the
country. Appointed by the last President
Bush to the 6th Circuit he has rapidly become a bellwether for how
conservative causes will fare in major cases.
One example was his surprising opinion upholding the key elements of
Obamacare (which disappointed his conservative fans), a stance subsequently echoed
by the Supreme Court itself [see http://douglaswhaley.blogspot.com/2012/07/obamacare-john-roberts-and-supreme.html]. Jeff Sutton is a friend of mine, dating from
when he was one of my students, to his continued teaching as an adjunct professor
at the Ohio State Moritz College of Law where I teach (he joked to me in the
mailroom a year or so ago that due to all the teaching he’s done for us he’s
the only adjunct professor at OSU on a tenure track), and seeing him at various
events. When he was sworn in as a member
of the 6th Circuit, at the party following I caused him to roll his
eyes when I predicted an appointment to the United States Supreme Court would
follow. When next a Republican is
elected president that’s a strong possibility.
Jeff is scary smart, thoughtful, and dedicated to getting things right.
On November 6, 2014, the 6th Circuit Court of
Appeals handed down the first decision in this country by a federal appellate
court that did not strike down the state bans on gay marriage that were the
subject of the combined cases before it from four states. The ruling in the case, called DeBoer v. Snyder, was 2-1, with Jeffrey
Sutton writing the majority opinion (joined by Judge Deborah Cook, also
appointed by President Bush); the dissent came from Judge Martha Daughtrey (a Clinton appointee). This major ruling creates a conflict
between the circuits and makes the issue plump for resolution by the United
States Supreme Court. The 6th
Circuit’s deviation from the results in the other circuits and what it means
for the legal future of gay marriage ban challenges is the subject of this blog
post.
Judge Sutton’s opinion begins like this:
Of all the ways to resolve
this question, one option is not available: a poll of the three
judges on this panel, or for that matter all federal judges,
about whether gay marriage is a good idea. Our judicial commissions did not
come with such a sweeping grant of authority, one that would allow just three
of us—just two of us in truth—to make such a vital policy call for the thirty-two
million citizens who live within the four States of the Sixth Circuit:
Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide
instead is a legal question: Does the Fourteenth Amendment to the United States
Constitution prohibit a State from defining marriage as a relationship between
one man and one woman?
He then refers to Baker v. Nelson, 409 U.S. 810, 810 (1972), in which two men had tried
to get married in Minnesota in the early 1970s only to have the Minnesota
Supreme Court reject their marriage application. The men appealed to the United
States Supreme Court. The Court rejected their challenge, issuing a one-line
order stating that the appeal did not raise “a substantial federal question.” Sutton comments:
This type of summary decision, it is true, does not bind the
Supreme Court in later cases. But it does confine lower federal courts in later
cases. It matters not whether we think the decision was right in its time,
remains right today, or will be followed by the Court in the future. Only the
Supreme Court may overrule its own precedents, and we remain bound even by its
summary decisions “until such time as the Court informs [us] that [we] are
not.” Hicks v. Miranda, 422 U.S. 332, 345 (1975). . . . The Court has yet to inform us that we are
not, and we have no license to engage in a guessing game about whether the
Court will change its mind or, more aggressively, to assume authority to
overrule Baker ourselves.
Sutton then explores whether
the Court has ever said that gay marriage is a federal question, and concludes
that in its three decisions concerning gay rights the Court has not. In Lawrence
v. Texas (2003) the Court struck down all sodomy statutes as
unconstitutional, and in Romer v. Evans
(1996) the Court held that a state could not first grant gays rights and then
take them away without a valid reason, but neither of those cases dealt with
marriage. The one Court opinion that
does, the Windsor case from last
year, ruled that the federal government could not constitutionally refuse to
recognize gay marriages validly entered into in states that allow such
marriages, but the majority opinion clearly stated that it expressed no view on
whether the states must follow suit (causing Justice Scalia in dissent to scoff
that now we’re “only waiting for the other shoe to drop”).
Thus, Sutton reasons, unless
the Constitution clearly requires states to marry gay couples, it would be
wrong for the lower federal courts to do so.
He begins his constitutional analysis with what scholars call “original
meaning,” i.e.: would the drafters of the Constitution have had an opinion on
the matter at issue in this case. Sutton
states:
If American lawyers in all
manner of settings still invoke the original meaning of Magna Carta, a Charter
for England in 1215, surely it is not too much to
ask that they (and we) take seriously the original meaning of the United States
Constitution, a Charter for this country in 1789. Any other approach, too lightly
followed, converts federal judges from interpreters of the document into newly commissioned
authors of it. . . . Yes, the Fourteenth
Amendment is old; the people ratified it in 1868. And yes, it is generally
worded; it says: “[N]or shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.” Nobody in this case, however,
argues that the people who adopted the Fourteenth Amendment understood it to
require the States to change the definition of marriage.
Sutton then looks at the
argument based on the 14th Amendment that has swayed many other
Circuit Courts into coming out in favor of gay marriage: the argument that
there is no “rational basis” for discriminating against gay couples wishing to
marry. He asks why human societies
created marriage in the first place, and buys the argument (rejected by the other
courts) that marriage protects children (which straight couples can all too
easily produce) by making sure these children are frequently born into a legal
arrangement difficult to undo. Since
gays cannot have unwanted children, the argument goes, society didn’t include
them in the concept of “marriage.” When
confronted with the argument that gays should
be so included, he agrees, but then goes on to say:
The signature feature of
rational basis review is that governments will not be placed in
the dock for doing too much or for doing too little in
addressing a policy question. In a
modern sense, crystallized at some point in the last ten
years, many people now critique state marriage laws for doing too little—for
being underinclusive by failing to extend the definition of marriage to gay
couples. Fair enough. But rational basis review does not permit courts to invalidate
laws every time a new and allegedly better way of addressing a policy emerges,
even a better way supported by evidence and, in the Michigan case, by judicial
factfinding.
Judge Sutton then finds
another “rational basis” in allowing states to experiment with what works and what doesn’t, allowing them to see
what other states are doing and deciding whether to follow. Some states in the past have allowed polygamy,
others child marriage, while yet others have forbidden even first cousins to
marry. In Sutton’s view the states are
laboratories for innovations in civilization: “If, before a new
consensus has emerged on a social issue, federal judges may decide when the
time is ripe to recognize a new constitutional right, surely the people should
receive some deference in deciding when the time is ripe to move from one
picture of marriage to another.”
Throughout his opinion,
Judge Sutton is careful to acknowledge that gays have been much discriminated
against, that they deserve the right to marry, that their concerns are valid
ones, etc., but none of these considerations persuade him that the Constitution
requires or even permits him to invalidate state marriage laws that do not—so far—allow
gays to marry.
The majority opinion
concludes by opining that the Supreme Court might well overrule this decision
and mandate gay marriage, but isn’t it also possible that the Court will go the
other way on the theory
that the traditional arbiters of change—the people—will meet
today’s challenge admirably and settle the issue in a productive way? In just
eleven years, nineteen States and a conspicuous District, accounting for nearly
forty-five percent of the population, have exercised their sovereign powers to
expand a definition of marriage that until recently was universally followed
going back to the earliest days of human history. That is a difficult timeline
to criticize as unworthy of further debate and voting. 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.
Now comes the dissent by Judge
Martha Daughtrey which all the commentators have rightly described as “blistering.” Here are her first two paragraphs:
The author of the majority
opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political
Philosophy. 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. Because I reject the
majority’s resolution of these questions based on its invocation of vox
populi and its reverence for “proceeding with caution” (otherwise known as
the “wait and see” approach), I dissent.
In the main, the majority
treats both the issues and the litigants here as mere abstractions.
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. But these
plaintiffs are not political zealots trying to push reform on their fellow
citizens; they are committed same-sex couples . . . 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. They
seek to do this by virtue of exercising a civil right that most of us take for
granted—the right to marry.
How 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. As an obviously exasperated Judge Posner responded after
puzzling over this same paradox [in his splendid Seventh Circuit opinion
striking down the gay marriage ban, see below], “Go figure.”
Judge Daughtrey then traces
the terrible plight of the children living in gay households in the various
cases consolidated for appeal in this case, and in a lengthy discussion of the
prior decisions by the other Circuits and the court below demonstrates that
their legal conclusions are more than merely sound under current constitutional
theories, they are compelling. As for
the minor case that begins Sutton’s opinion she sneers, that “If ever there was a legal 'dead
letter' emanating from the Supreme Court, Baker
v.Nelson, 409 U.S. 810 (1972), is a prime candidate. It lacks only a stake
through its heart.” She notes “the Supreme Court silence on
the matter in the 42 years since it was issued,” and the fact that the Court
has not mentioned that case in any of the other gay rights cases it has decided
since. She concludes her opinion with
this paragraph:
More than 20 years ago, when
I took my oath of office to serve as a judge on the United
States Court of Appeals for the Sixth Circuit, I solemnly
swore to “administer justice without respect to persons,” to “do equal right to
the poor and to the rich,” and to “faithfully and impartially discharge and
perform all the duties incumbent upon me . . . under the Constitution and laws
of the United States.” See 28 U.S.C. §453. 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.
The
full text of the opinions in this case are well worth reading; if interested
see http://www.scribd.com/doc/245767271/14-1341-184-6th-Circuit-Decision-in-Marriage-Cases.
Now what?
The Supreme Court made a canny move in not taking any of the
other four Circuit opinions striking down the gay marriage bans in many states
across the country. As long as those
courts were uniform SCOTUS could stay out of it, deciding by not having to
decide. But once the 6th
Circuit went the other way, the Court is highly likely to take the appeal and
decide it before the end of the Court’s term (concluding June, 2015). This case is particularly appealing to all
the Justices. The four solid
conservatives (Chief Justice Roberts, Scalia, Alito, and Thomas) might easily be
wooed by Sutton’s opinion, which clearly and eloquently states a dominant
conservative stance: the federal government should stay out of something which
is primarily a matter for the states to decide themselves. The four solid liberals (Ginsberg, Breyer,
Kagan, and Sotomayor will think Sutton’s opinion is vulnerable along the lines
traced in the dissent, and certainly out of step with the splendid opinions in
the other Circuit Courts (most particularly the wonderful thundering of Judge
Richard Posner in the 7th Circuit [see http://www.chicagotribune.com/news/opinion/zorn/chi-full-text-of-richard-posners-opinion-gay-marriage-20140905-story.html#page=1].
It only takes four Justices to vote to accept a case and then the Court must
hear it.
Justice Kennedy |
That leaves the man I’ve
described in prior posts as the most powerful judge in the world, Justice
Anthony Kennedy, with his usual swing vote in these hard cases [see http://douglaswhaley.blogspot.com/2011/07/jumping-broom-how-married-are-married.html]. Those readers in favor of striking down
ani-gay marriage statutes and state constitutional provisions might be heartened
by two facts about Kennedy: (1) in last year’s Windsor case he agonized over the fate of children being raised by
homosexual couples who cannot marry and adequately protect them legally (which the
dissent in the 6th Circuit opinion quoted in full), and (2) Kennedy
has always been very friendly to gays, writing the majority opinions in all
three of the famous Supreme Cases protecting gays mentioned above: Lawrence (striking down the sodomy
statutes), Romer (protecting gays
from having existing rights snatched away), and Windsor (holding that the federal government must recognize gay
marriages legally sanctioned by states).
Related Posts:
“A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act,” March 30, 2015; http://douglaswhaley.blogspot.com/2015/03/a-gay-hoosier-lawyer-looks-at-indianas.html;
“Oral Arguments on Gay Marriage in the Supreme Court: What Was and What Wasn’t Said,” April 28, 2015; http://douglaswhaley.blogspot.com/2015/04/oral-arguments-on-gay-marriage-in.html;
“Married at Last! A Gay Lawyer Looks at What the Supreme Court Actually Said About Same-Sex Marriage,” June 30, 2015; http://douglaswhaley.blogspot.com/2015/06/married-at-last-gay-lawyer-looks-at.html;
“A Guide to the Best of My Blog,” April 29, 2013 [http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html]
“A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act,” March 30, 2015; http://douglaswhaley.blogspot.com/2015/03/a-gay-hoosier-lawyer-looks-at-indianas.html;
“Oral Arguments on Gay Marriage in the Supreme Court: What Was and What Wasn’t Said,” April 28, 2015; http://douglaswhaley.blogspot.com/2015/04/oral-arguments-on-gay-marriage-in.html;
“Married at Last! A Gay Lawyer Looks at What the Supreme Court Actually Said About Same-Sex Marriage,” June 30, 2015; http://douglaswhaley.blogspot.com/2015/06/married-at-last-gay-lawyer-looks-at.html;
“A Guide to the Best of My Blog,” April 29, 2013 [http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html]
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