Marriage Equality Hangs in the Balance at the Sixth Circuit

6th circuit


Yesterday's marathon arguments before the Sixth Circuit Court of Appeals reminds us that one judge can have a lot of power. A three-judge panel consisting of one Clinton appointee and two George W. Bush appointees could be the first federal appellate court to side against marriage equality in the post-Windsor era or they could join the chorus of colleagues tossing these discriminatory bans on the ash heep of history. Based solely on the questioning from oral argument, it may come down to one judge: a conservative named Jeffrey Sutton.

6Attorneys for Michigan, Ohio, Kentucky, and Tennessee took turns arguing that the bans are justified because only opposite sex couples procreate naturally. Judge Martha Craig Daughtry questioned how it was possible that keeping gays out of the institution of marriage could in any way help or encourage heterosexuals to give birth to more kids. One attorney even cited the decreased birth rates in Europe and Russia as a reason for encouraging opposite sex couples to marry. But, as Judge Daughtrey, the most vocal judge, noted, it is unclear how discriminating against gays achieves that goal.

Judge Deborah Cook spoke the least. She has a history of anti-plaintiff, conservative decisions on discrimination. When she did speak, she seemed to suggest that states have broad power to regulate marriage and could maintain traditional institutions as they see fit.

Judge Sutton is a bit of a wild card. A conservative — he wrote in the Harvard Law Review: "Count me as a skeptic when it comes to the idea that this day and age suffers from a shortage of constitutional rights" — Judge Sutton voted in favor of the constitutionality of Obamacare and does not always follow a party line. His questioning was back and forth, balanced between the sides. A review of his questions and a cursory analysis of some of his writings and decisions suggest that he is primarily concerned with judicial modesty and restraint. He thinks that the federal courts have done too much, creating new rights and reading rights and regulations into the Constitution that do not belong.

It is unclear whether that preference for restraint means that he will deny that a right to marry exists for gay couples.

He wondered if his court could even make a decision or whether the judges were bound by a 1971 Supreme Court decision (Baker v. Nelson) that said that marriage lawsuits do not belong in the federal courts. Almost every other court to address marriage equality addressed and dismissed the Baker canard: gays had not recognized federal rights in 1971; today, after Windsor, after Lawrence, and after Romer, is a different time. Judge Sutton didn't seem too sure.

I Screen Shot 2014-08-07 at 5.39.25 PMf he could get passed the Baker threshold, Judge Sutton still was holding his cards close to his chest. He was pretty clear that the states could not win if antigay discrimination merited some form of heightened scrutiny, but he did not hint that he was leaning in the heightened scrutiny direction.

Perhaps the most interesting part of Judge Sutton's questioning came later in the day when he wondered aloud if the plaintiffs in the cases really want the courts to get involved when the marriage equality movement seems to be gaining political steam and social esteem. Judge Sutton implied, true to his radical vision of judicial abdication of responsibilities, that political outcomes are somehow more legitimate than judicial ones.

It is hard to imagine that view as a legitimate basis for deciding against the marriage equality. Judge Sutton has written a lot about how federal judges do too much. He would prefer that judges take a back seat to the political process, an entirely conservative position given the greater access that money and majorities have to political votes. But just because he prefers judges abdicate their constitutional responsibilities should not absolve him of actually deciding the legal questions before him. The legal questions involve equality and fundamental rights, not some policy preference for more judicial modesty.

This is why marriage equality hangs in the balance. Judge Sutton was not clear where he stands. 


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


  1. Jonty Coppersmith says

    To Judge Sutton I would say that the judicial branch of our government is not subservient to the executive or legislative branches. It is co-equal. Furthermore, the judicial branch should never be subservient to popular whim of the day.

  2. Will says

    So…Mr. and Mrs. Loving, why are you here in court and not back home lobbying your legislators? Why do we poor judges have to decide that you can be married? Why rush to court when your movement is making such steady progress in the legislatures?

    Can’t you see we’re busy?

  3. Ken says

    From what I’ve read about Sutton in other places I think we are heading for a loss here. But what a loss may do is put more pressure on SCOTUS to take on the issue and resolve it once and for all. And I still believe the votes are there on the Supreme Court to make marriage equality nationwide.

  4. ben~andy says

    Judge Daughtry made a great point about “waiting” in that she said that on the issue of women’s suffrage, it took 78 YEARS of intense, local lobbying and it STILL had to be done nationally to complete it. It has been 45 years since Stonewall. We’ve been lobbying that entire time. I think Judge Sutton knows it.

  5. woody says

    The court has to rule one way or another, doesn’t it Ari? Just because Sutton thinks it would be best for all concerned if voters repealed the bans, the fact remains that the case is before his court. Can he actually rule against us on the grounds that since voters approved the current bans it would be “nicer” if voters repealed them? He’d be a laughing stock.
    Cook will rule against us on different logic that he doesn’t seem to buy into.

  6. ben~andy says

    By the way, like the Lovings and like the civil rights workers, I’m “done” with waiting for grudging acceptance. We’re over 50% in national polls. Time for the Supremes to give us the same rights a corporation has. The right to join with the human being of our choice.

    If we lose at the 6th, there’s always en banc and the Supremes. En banc might actually delay it to 2nd term [Spring 2015]. Going gayly forward to the High Court could get it done by Xmas and while I’ll feel sorrow that the fundies are wailing and gnashing their teeth, I’ll be dancing at weddings like I did [in a Summer rainstorm!] at weddings of friends, either literally or metaphorically, all over the country. I know gay people in just about every state in the union, one way or another and it is certainly time, now.

  7. ben~andy says

    @Woody, Sutton has to join one side or the other, no “cut the baby in half” for him. He must either rule for or against. There is not a 3rd option as no plaintiff or defendant asked for a 3rd option.

    He might join Daughtry on the recognition of out of state marriages and Cook to uphold the ban on marriages actually happening IN those states, which is even more ludicrous than it sounds and would end up in “wedding chapels” lining the roads on the state lines. No, he’ll have to either hold his nose and rule for us or try and erase upholding Obamacare and vote against us.

    My read, having listened to the audio, it was wishful thinking that he RATHER it didn’t happen by judicial action, but he’s a realist and knows it WILL happen and it is before him and he has to rule on it because there isn’t a single solitary leg for the opposition to stand on he’ll rule for us.

  8. MiddleoftheRoader says

    On the point that ONE person can make all the difference, that’s exactly what will happen on the Supreme Court: the entire issue of marriage equality will be decided by Justice Kennedy (assuming that the other Justices remain alive when a decision is made, 5-4, one way or another).

    Actually Judge Sutton’s “rationale” could be as simple as the following: (1) marriage has traditionally been a state issue; (2) just last term the Supreme Court said (in a Michigan case) that amendments to state constitutions enacted by state voters are entitled to significant respect (in a case involving racial preferences); (3) thus far, the Supreme Court has not mandated same-sex marriage under the US Constitution; and (4) ergo the rights of state voters to amend their state constitutions on an issue that has historically been a state issue (notwithstanding Loving) should be respected unless and until the Supreme Court says otherwise.

    I don’t agree with that analysis, but it’s something he might write. One can only hope that he would have such a difficult time explaining that reasoning (in a few years) to his young children, who inevitably will see same-sex marriage as a non-issue, that he will “bite the bullet” and accept the legal argument that the analogy to the Loving case is in fact controlling here.

  9. ben~andy says

    @Sergio, certainly. Baker would just allow him to “kick the can down the road” but means the Supremes are even MORE likely to TAKE the case SOON.

    “Playing for time” means taking EVERY, SINGLE, POSSIBLE, even IMPROBABLE option to delay. Say Baker precludes there being a federal question [you look like an idiot, but perhaps worth it] and then Plaintiff ask for en banc or to go to Supremes.

    If DELAY is your ABSOLUTE tactic, you go FOR us and then defendants might ask for en banc, again to DELAY so that maybe it doesn’t get into the Fall Supremes lineup. Meaning that it is perhaps June of 2015 before you have to face the [to you] ugly truth that Baker DID NOT apply and so you got it WRONG where everyone else got it right.

    Just like we’re seeing Republidiots jump onto the SSM bandwagon [even Rand Paul waffled wanting the USGovt OUT of the marriage business, like THAT will happen], judges too might realize their enlightened self interest means giving rights to the fags will improve their brand. Sutton doesn’t have to be elected and can only be removed by impeachment. He can only move up to the Supremes by being approved by the Senate.

  10. Randy says

    Keep in mind that if anything happens to a moderate member of the court (there are no liberals) a Republican Senate will be approving any replacement, and I suspect they would have no problem denying ALL of Obama’s nominees until the next presidential election.

  11. Sergio says

    I was actually talking about the grammar of that sentence, Ben~Andy. Glad my comment somehow gave you a platform to elaborate on some other things, though!

  12. enough already says

    Oh. My. God.
    Towleroad commentators actually were polite to each other.
    Has this ever happened before?

    Ari, I appreciate your analysis and commentary a very great deal. I struggle with the American concept that human and civil rights are only for straight people. You often make these things clearer for me. Thanks!

  13. Jim says

    Actually the appeal doesn’t hang on just one judge. This is a 3-judge panel of a larger court. Even if there’s a 2-1 ruling against marriage equality, appellants can request a en banc hearing of the entire court. We got a bad draw getting two wacky Bush-league Republicans. Where George W. found them, only he knows. Marriage equality won’t be stopped by these two–not for any reason. All the members of the Sixth Court of Appeals know marriage equality is inevitable. The entire court won’t let itself end up on the wrong side of law and history just because two zanies peddle their crackpot politics from the bench.

  14. ben~andy says

    @Sergio, why given an inch to plant my pumps and I’ll bounce it off the back wall like Ethel Merman. lol

    @Jim, exactly. The system is redundantly redundant. Each and every case in Federal Court has 4 possible levels: 1 judge for trial, 3 judges for appeal, en banc for 2nd appeal [varying numbers in different circuits from “all” to 11 in the 9th] and the Supremes. However, the number is always “odd” and it often seems to come down to a bare majority in many cutting edge cases so it is often “one judge” makes the difference.

    But someone[s] DID say the other day that both Sutton is a reasoned jurist and as often as not rules more progressively than expected and that we’d probably win en banc in the 6th. I listened to him carefully and he spoke quite a bit] and he seemed like someone who would be fair, as he understood the law. It will depend if he can “get past” Baker and he even asked questions about that issue and didn’t seem to have too much agenda to hear the answers.

  15. RexTIII says

    Something tells me he may well delay ruling until SCOTUS has agreed to take pending cases, skirting a ruling all together. Try as he might, and he did not give up in attempts at finding something solid he could hold onto in order to uphold the Unconstitutional laws, he failed to establish anything. Some even think Cook may well rule to overturn the Laws based on the merits of each case.

  16. ben~andy says

    Cook was nearly silent in all four hearings. I don’t know what would happen if the 3 judges simply couldn’t come to some place where at least two were agreeing. It might be an automatic en banc. Yet another civics lesson.

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