On Marriage Equality, a Blessing Well Disguised

      The federal appeals court decision on Thursday [Nov. 6] upholding same-sex marriage bans in four states may be a blessing in disguise for advocates of marriage equality because it will force the Supreme Court to confront the issue, quite likely during this term. But the blessing is well disguised in an act of judicial laissez-faire that leaves the rights of same-sex couples in Kentucky, Michigan, Ohio, and Tennessee unprotected against political inertia and public disregard.
      The majority opinion from the Sixth U.S. Circuit Court of Appeals turns aside the same-sex couples with a civics class lecture about the virtues of social change through the political process instead of judicial decree. It accepts as binding a one-sentence Supreme Court precedent from more than 40 years ago that has clearly been overtaken by changes in legal doctrine.
      The ruling goes on to approve with utmost deference the flimsy arguments for privileging opposite-sex couples’ marriages, and only theirs, in order to promote “responsible procreation.” It allows same-sex parents to be relegated to second-class legal status based on unproven fears about adverse effects on the children’s upbringing and wellbeing. And it rests on a straw man argument that an exclusionary law can be struck down on the basis of unconstitutional animus only by proof of malicious intent on the part of legislators or voters, not by the objective impact of the law.
      The ruling came three months to the day after the three-judge panel had heard a full three hours of arguments in what were technically six cases from the four states. From the outset, it was clear that the deciding vote lay with Jeffrey Sutton, a former Ohio solicitor general, Federalist Society member, and darling of legal conservatives.
      Thus, it was no surprise that Sutton emerged as the author of the majority opinion released late in the afternoon. Sutton was joined in the opinion by Judge Deborah Cook, who like Sutton was appointed to the appeals court by President George W. Bush. A strong dissent came from Judge Martha Craig (Cissy) Daughtrey, a veteran jurist with unconcealed liberal views appointed to the appeals court in 1994 by President Bill Clinton. (Disclosure: Daughtrey is a personal friend of more than 40 years’ standing.)
      Sutton’s opinion gives little by way of red meat to the confirmed anti-gay opponents of marriage equality. Gay couples, he says, are fully capable of forming loving relationships and of raising children in stable families. He acknowledges the “lamentable” prejudice against gays and lesbians and the tangible costs from refusing marriage to same-sex couples.
      As Daughtrey points out in her dissent, however, Sutton does not consider the same-sex couples’ rights to be the issue for the court to decide. Instead, Sutton says, the question is “who decides” — federal courts or what he calls “the less expedient, but usually reliable, work of the state democratic processes.”
       Sutton’s answer will cheer the advocates of judicial restraint. Political process and structure, he says, are “the most reliable, liberty-assuring guarantees of our system of government,” not the courts. History includes many examples when courts were needed to protect individual rights. In any event, as Daughtrey says in dissent, the either-or dichotomy that Sutton posits is simply a “false premise.”
      Sutton is also off-base in relying on the Supreme Court’s curt rejection of same-sex marriage rights back in 1972. A succession of federal courts, including four courts of appeals, have found that precedent no longer binding. Sutton himself acknowledges its diminished weight, but Daughtrey is more to the point in dismissing it as “a dead letter.”
      Sutton acknowledges the rulings from other courts, but finds them unpersuasive because the other courts have not spoken with a single voice in their legal rationales. One by one, he rejects each of the rationales. He devotes special attention to the argument that same-sex marriage bans are based on unconstitutional animus against gays and lesbians.
      In Sutton’s view, it is both impossible and unfair to attribute anti-gay prejudice to all the legislators and voters who have approved or kept in place the traditional definition of one-man, one-woman marriage. Daughtrey correctly responds that the Supreme Court has not required evidence of “hostile intent” to find unconstitutional animus on the basis of a law’s objective effect.
      The Supreme Court confounded legal handicappers as the justices opened the new term in October by turning aside the marriage cases that had been teed up for review. The inaction seemed to substantiate Justice Ruth Bader Ginsburg’s suggestion that the court was waiting for a conflict at the circuit court level before stepping in.
      Sutton’s opinion now creates that conflict. Lawyers for the plaintiff couples in the Michigan and Ohio cases promptly said that they would promptly file petitions asking the high court to hear their appeals. Time is short, but the calendar allows the petitions and the states’ replies to be filed in time for the justices to consider the cases by mid-January — the customary deadline for arguments and decision this term.
      Sutton advises the court to let the political process continue so that “fellow citizens,” gay and straight alike, can resolve this “new social issue” in “a fair-minded way.” Daughtrey has a strong rejoinder. If the courts shirk their “responsibility to right fundamental wrongs left excused by a majority of the electorate,” she writes, the constitutional system of checks and balance will “prove to be nothing but shams.”