The 6th Circuit Looks Poised to Uphold Gay Marriage Bans—for “Democracy”

Expanding the LGBTQ Conversation
Aug. 7 2014 5:06 PM

The 6th Circuit Looks Poised to Uphold Gay Marriage Bans—for “Democracy”

454109275-participants-hold-up-a-rainbow-banner-during-the-manila

Photo by Dondi Tawatao/Getty Images

The heady era of the post-Windsor winning streak may soon come to a crashing halt.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

That’s the message that Judge Jeffrey Sutton seemed to telegraph during Wednesday’s gay marriage oral arguments at the 6th Circuit. Sutton is the swing vote on the circuit panel: To his left is Judge Martha Craig Daughtrey, a Clinton appointee and staunch liberal; to his right is Judge Deborah Cook, a thoroughly right-wing George W. Bush appointee. Sutton, also placed on the bench by Bush, is a genuine conservative and a former clerk of one Justice Antonin Scalia. (Scalia calls him “one of the very best law clerks I ever had.”) But ever since Sutton upheld Obamacare in 2011, he’s been lauded on the left for his judicial independence.

Advertisement

Will that independence lead Sutton to strike down gay marriage bans in Michigan, Kentucky, Ohio, and Tennessee? Or will his conservatism push him to uphold the states’ laws? Based on Wednesday’s arguments, marriage advocates have good reason to worry. Unlike Cook, who clearly viewed gay marriage prohibitions as a rational state policy, Sutton seemed to scowl at the prospect of excluding an entire class of people from marriage. But unlike Daughtrey—who fiercely questioned the state’s interest in discriminating against gays at every turn—Sutton appeared exceedingly hesitant to bring gay marriage to America through judicial fiat.  

Sutton has two hang-ups. The first is not terribly unreasonable. In a 1972 case called Baker v. Nelson, the Supreme Court dismissed a challenge to Minnesota’s gay marriage ban “for want of a substantial federal question”—that is to say, the court didn’t see a constitutional flaw in the ban. The case was decided through a summary affirmance of a lower court ruling, meaning the justices didn’t hear arguments or write a real opinion. But a summary affirmance is generally considered to be binding precedent on lower courts.

You might think that Justice Anthony Kennedy would confront Baker—the only Supreme Court precedent to deal directly with the merits of state gay marriage bans—when he overturned DOMA. But instead, he ignored it, perhaps in an effort to leave the whole question of state-level bans for another day. Every district court that has since struck down these bans worked around Baker by citing a somewhat ambiguous loophole: A summary affirmance might not be controlling precedent when it has since been undermined by “doctrinal developments.”

The question for Sutton, then, is simple: Does the trio of great gay rights cases (Romer, Lawrence, and Windsor) render Baker’s holding completely moot? Or does Baker remain binding precedent? Sutton seemed to lean toward keeping Baker on life support for now and letting the Supreme Court pull the plug, noting:

Even when you see one line of cases crumbling, lower courts aren’t allowed to infer, and anticipatorily overrule, this other line of cases. So as a matter of hierarchy, aren’t we stuck with Baker?

But then Sutton seemed to walk back his statement, musing that “the legal reasoning in other cases”—Romer, Lawrence, and especially Windsor—were “totally inconsistent with Baker.” At the end of his colloquy on the topic, he seemed a little stumped, and more than a little frustrated.

Even if Sutton moves beyond the Baker hump, however, he’s got another, more profound hang-up: He wants to leave gay marriage to the democratic process. It was probably this respect for legislative authority and separation of powers that led Sutton to uphold Obamacare—but here it seemed to be leading him to a more conservative conclusion. At one rather awkward point, Sutton launched into a strange monologue about the gay rights movement’s tactics, one that seemed barely tethered to the merits of the case at hand:

I would’ve thought the best way to get respect and dignity is through the democratic process. Forcing one’s neighbors, co-employees, friends, to recognize that these marriages, the status deserves the same respect as the status in a heterosexual couple. … If the goal is to change hearts and minds … isn’t it worth the expense? Don’t you think you’re more likely to change hearts and minds through the democratic process than you are through a decision by five justices of the U.S. Supreme Court?

These words should be very unnerving for supporters of same-sex marriage. Don’t come to us with your demands for equal protection and fundamental rights, Sutton implied; take your case to the voters instead. Being a legal stranger to your spouse and child isn’t so bad, he suggests, that you need to turn to the federal courts for relief. This reasoning stands in stark contrast to Kennedy’s Windsor opinion, which explained that marriage bans “demean” gay couples and “humiliate” their children. In Kennedy’s eyes, gay marriage bans “degrade” gay people. In Sutton’s eyes, they merely annoy them.

There are, of course, a slew of other legal issues for the court to sift through: whether gay people are a protected class subject to heightened judicial scrutiny; whether marriage is a fundamental right, regardless of gender; and whether there’s even a rational basis for denying gay couples a marriage certificate. But on Wednesday, all of these questions took a backseat to Sutton’s ruminations on Baker and democracy. If Sutton can grasp the real, immediate harms these bans inflict on gay people, he’ll surely find a way to move past these roadblocks. But little from Wednesday’s arguments gave us reason to be optimistic. 

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

TODAY IN SLATE

Politics

Talking White

Black people’s disdain for “proper English” and academic achievement is a myth.

Hong Kong’s Protesters Are Ridiculously Polite. That’s What Scares Beijing So Much.

The One Fact About Ebola That Should Calm You: It Spreads Slowly

Operation Backbone

How White Boy Rick, a legendary Detroit cocaine dealer, helped the FBI uncover brazen police corruption.

A Jaw-Dropping Political Ad Aimed at Young Women, Apparently

The XX Factor
Oct. 1 2014 4:05 PM Today in GOP Outreach to Women: You Broads Like Wedding Dresses, Right?
Music

How Even an Old Hipster Can Age Gracefully

On their new albums, Leonard Cohen, Robert Plant, and Loudon Wainwright III show three ways.

How Tattoo Parlors Became the Barber Shops of Hipster Neighborhoods

This Gargantuan Wind Farm in Wyoming Would Be the Hoover Dam of the 21st Century

Moneybox
Oct. 1 2014 8:34 AM This Gargantuan Wind Farm in Wyoming Would Be the Hoover Dam of the 21st Century To undertake a massively ambitious energy project, you don’t need the government anymore.
  News & Politics
Politics
Oct. 1 2014 7:26 PM Talking White Black people’s disdain for “proper English” and academic achievement is a myth.
  Business
Buy a Small Business
Oct. 1 2014 11:48 PM Inking the Deal Why tattoo parlors are a great small-business bet.
  Life
Outward
Oct. 1 2014 6:02 PM Facebook Relaxes Its “Real Name” Policy; Drag Queens Celebrate
  Double X
The XX Factor
Oct. 1 2014 5:11 PM Celebrity Feminist Identification Has Reached Peak Meaninglessness
  Slate Plus
Behind the Scenes
Oct. 1 2014 3:24 PM Revelry (and Business) at Mohonk Photos and highlights from Slate’s annual retreat.
  Arts
Brow Beat
Oct. 1 2014 9:39 PM Tom Cruise Dies Over and Over Again in This Edge of Tomorrow Supercut
  Technology
Future Tense
Oct. 1 2014 6:59 PM EU’s Next Digital Commissioner Thinks Keeping Nude Celeb Photos in the Cloud Is “Stupid”
  Health & Science
Science
Oct. 1 2014 4:03 PM Does the Earth Really Have a “Hum”? Yes, but probably not the one you’re thinking.
  Sports
Sports Nut
Oct. 1 2014 5:19 PM Bunt-a-Palooza! How bad was the Kansas City Royals’ bunt-all-the-time strategy in the American League wild-card game?