After an unbroken series of victories in federal courts, those advocating for marriage equality had a bit of a setback last week. The Sixth Circuit Court of Appeals ruled 2-1 to uphold same sex marriage bans in four states, Michigan, Ohio, Kentucky and Tennessee. Lower court rulings in all four states had gone for the plaintiffs, overthrowing such bans. The decision was written by Judge Jeffrey Sutton, with Judge Deborah Cook concurring. Senior Judge Martha Daughtrey dissented.
The Supreme Court recently decided not to grant cert in a number of cases involving same sex marriages, allowing lower court rulings to stand. No one knows why cert wasn’t granted–SCOTUS doesn’t have to explain itself to anyone. But it’s reasonable to assume that they decided not to review the cases because there was no dispute between them. Typically, SCOTUS reserves judicial review for instances where, on a single issue, lower courts disagree.
So plaintiffs in these four cases now have two options. One is, they could request that the case be reviewed by the entire Sixth Circuit en banc. That is to say, they could request that the entire panel of Sixth Circuit judges look at the thing, rather than just three judges chosen randomly. Or, of course, they could ask the Supreme Court to review it. If they do, it’s probable that SCOTUS will take it.
Judge Sutton’s decision is, um, kinda unusual. It reads more like a civics lesson than a court decision. It suggests that the decision to expand the definition of marriage is not one properly decided by courts. It’s a federalism decision; a states’ rights decision. The definition of marriage is not something courts should decide. Then, when the decision does get into questions of case law and precedent, it does so idiosyncratically. For example, it uses a 1972 decision, Baker v. Nelson, in which a state court invalidated a gay marriage performed by a minister (subsequently denied cert by SCOTUS) as a valid precedent. But Baker was decided a long time ago, and is generally regarded as having been overturned by Lawrence v. Texas and United States v. Windsor, which are far more recent. And given an opportunity to weigh in on gay marriage, SCOTUS punted. But these developments might never have happened, as far as Judge Sutton is concerned.
Check out, for example, this passage:
Over time, marriage has come to serve another value–to solemnize relationships characterized by love, affection, and commitment. Gay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation, but on individual choices and individual commitment. All this supports the policy argument made by many that marriage laws should be extended to gay couples, just as nineteen states have done through their own sovereign powers. Yet it does not show that the States, ca. 2014, suddenly must look at this policy in just one way on pain of violating the Constitution.
Really? I don’t get this at all. I suppose what he’s saying is that state legislatures are capable of arriving at different conclusions than the conclusions reached by pro-gay-marriage activists. But that’s not the point. There are plaintiffs in this case who claim to have been discriminated against. That’s what you’re deciding. That’s the case before you. A decision that says ‘they might have been discriminated against. That’s possible. But it’s not really our place to say’ is preposterous. It is, in fact, your place to say. That’s your obligation, to decide that.
And for you to say (paraphrasing the rest of the decision) ‘the love and commitment of gay couples is equal to the love and commitment of straight couples, and the ability to raise children is, in both cases, identical, but that doesn’t mean we have to rule for plaintiffs. They should go out and become activists in their states, and get their local legislators to change the law’ is just preposterous. Judge Sutton, if you’re not going to rule in cases like these, why are you an appellate court judge?
Judge Daughtrey responded with a blistering, angry, and more than a little snarky dissent.
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 shall decide’–and leads us through a largely irrelevant discourse on democracy and federalism.
Wham. She then goes on to make what seems to me an obvious point:
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. . . In the main, the majority treats both the issues and the litigants here as mere abstractions. Instead of treating the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry . . . 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 . . . they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status. . . .They seek to do this by exercising a civil right that most of us take for granted, the right to marry.
She then eviscerates the main argument made by the defendants in this, and other similar cases nationally, that redefining marriage might provide a disincentive for irresponsible heterosexual couples to marry, devaluing it somehow. “How ironic,” she says, “that unmarried, irresponsible, heterosexual couples who produce unwanted offspring must be ‘channeled’ into marriage, and thus rewarded with its many psychological and material benefits, while same-sex couples who become model parents are punished for their responsible behavior by being denied the right to marry.” Ironic indeed.
Being remarkably eloquent in defeat still means you lost. The Sixth Circuit opinion will certainly be reviewed, either by the rest of that court, or by the Supremes. My guess is that this decision will probably go to SCOTUS, and that this time the justices will grant cert.
It’s difficult for me to imagine that the Supreme Court wants to risk the kind of controversy a sweeping reversal of all those cases, in all those other Circuit Courts, would cause. And it’s impossible to imagine Justice Kennedy, who authored the Lawrence decision, would decide to uphold decisions as silly as this one from the Sixth. I predict it will go to SCOTUS, who will vote to overturn 6-3, with Kennedy, Sotomayor, Kagan, Ginsberg, Breyer and Roberts in the majority, and Scalia, Thomas and Alito in the minority. And Utah will provide the defining case of the controversy. Utah. Wow.