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].  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.”

In a similar, and very thorough manner, Sutton then demolishes the other legal arguments for striking down gay marriage bans.  His analysis is very polished and on first reading seems strong.  His conclusions are thoughtfully and eloquently expressed.

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.

She then points out what is missing from the majority opinion is any discussion of the children of homosexual couples.  She ties this thought to the “rational basis” the Sutton’s opinion found compelling for upholding marriage as only for heterosexuals in order to protect their accidental babies, and comments:

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

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]. 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].  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;;
“Oral Arguments on Gay Marriage in the Supreme Court: What Was and What Wasn’t Said,” April 28, 2015;;
Married at Last! A Gay Lawyer Looks at What the Supreme Court Actually Said About Same-Sex Marriage,” June 30, 2015;;
“A Guide to the Best of My Blog,” April 29, 2013 []   


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