BY ARI EZRA WALDMAN
Reading the Sixth Circuit's opinion permitting states to ban same-sex marriage is a cognitively dissonant experience: the opinion isn't really about gays, marriage, or gay marriage. It is, as the dissent notes, an "engrossing TED talk" on political philosophy or democracy. It is, in other words, a magician's misdirection.
The Sixth Circuit's conservatives do not want us to realize that what they just did is tear away equal and fundamental rights from real committed, loving couples, many of whom are raising children. Rather, they want us to think that they were hamstrung by their humble roles and the narrow confines of their judicial charges. Well, they can't fool us and they won't fool Justice Kennedy.
In a meandering opinion riddled with rhetorical questions rather than reasoned legal analysis, Judge Sutton (above, middle) argues, essentially, that he cannot affirm the unconstitutionality of bans on same-sex marriage because he is handcuffed by three things: Baker v. Nelson, the limited role of the judiciary and the Constitution, and eons and eons of social tradition. His language suggests, not too convincingly, that he would jump at the chance to allow gays to marry if he were a voter or a legislator. But as a judge, sitting in an intermediate appellate court inferior to the Supreme Court, he can't. He just can't.
Don't let Judge Sutton's rhetoric fool you. Behind the gloss of reasonable-sounding respect for the dignity of gay persons lies the same odious discrimination we have been hearing from the rump of the radical right still apoplectic that two men or two women can marry.
The upshot of this opinion is that it is Justice Ginsburg's trigger for when she thought the Supreme Court might take up a marriage equality case: the Sixth Circuit has just upheld bans on same-sex marriage. Now we are on a track to return to the Supreme Court where we may get a substantive holding on marriage equality. Expect an appeal request to be filed quickly, and expect the Supreme Court to take the case. We may even get a decision in June, on the anniversary of Windsor.
This is the first in a series of columns on the Sixth Circuit's decision; there are just too many pieces to this opinion to cover at once. Stay tuned to Towleroad over the next few days for special in-depth coverage and analysis.
Let's begin with a general summary of Judge Sutton's primary motivating point, AFTER THE JUMP...