Thursday’s 2–1 decision by the 6th Circuit upholding four states’ gay marriage bans is a deeply obnoxious slog that I would not recommend even to the most eager masochist. Its author, Judge Jeffrey Sutton, seems to fundamentally misunderstand the constitutional arguments behind marriage equality: Instead of analyzing the 14th Amendment’s dual guarantees of liberty and equal protection, he simply states that gay people have no business fighting for their civil rights in court. After a while, Sutton’s repeated insistence that it’s not a federal judge’s duty to enforce the constitution makes you want to grab him by the shoulders and ask, then what in the world were you hired for?
Luckily, someone has already done that for us: Judge Martha Craig Daughtrey, the dissenter in the case. Daughtrey’s opinion isn’t just blistering; it’s a scorching, bitterly funny, profoundly humane excoriation of Sutton’s sophistry. She opens with a witty jibe, taking Sutton to task for his tedious lecture on the values of the democratic process:
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. … Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. 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. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.
Daughtrey’s primary objection to Sutton’s opinion is that he treats the plaintiffs as “mere abstractions” rather than living, breathing human beings:
Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, 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 trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status.
Having efficiently debunked the premise of Sutton’s opinion, Daughtrey then turns to what, for her, is the key issue in the case: the children of gay couples. “Readers who are familiar with [Windsor],” Daughtrey writes, “must have said to themselves at various points in the majority opinion, ‘But what about the children?’ I did, and I could not find the answer in the opinion.” (Indeed, a key portion of Windsor notes that a gay marriage ban “humiliates” the children of gay couples.) Sutton may “pay lip service” to the effect of marriage on children, Daughtrey notes, but he “ignore[s] the destabilizing effect of its absence in the homes of tens of thousands of same-sex parents throughout the four states of the Sixth Circuit.”
With that gauntlet effectively thrown down, Daughtrey then devotes a remarkable number of pages to the extensive research on children and marriage equality. The children of gay couples who cannot marry, Daughtrey explains, suffer due to their parents’ legally inferior status, experiencing intense stigma and instability. They are embarrassed and ashamed by the legal opprobrium foisted upon their parents, and their financial and mental wellbeing is threatened by the state’s refusal to recognize their parents’ marriage. Gay marriage bans, Daughtrey writes, punish these children for no other reason than to denigrate their parents’ relationship. The laws are, to Daughtrey’s mind, obviously rooted in irrational animus against gay people and thus violate the equal protection clause of the Constitution.
Daughtrey’s writing is searing, firm, and fiercely moral—a welcome antidote to Sutton’s timorous, waffling shrug. But if her logic is sound and satisfying, her parting shot is downright astonishing:
More than 20 years ago, when I took my oath of office … I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me ... under the Constitution and laws of the United States.” If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.
Judges do not use such words lightly. But Daughtrey has a point to make, and she intends to make it emphatically. To ignore one’s most fundamental duties in some ersatz submission to “democracy,” she suggests, is the greatest sin a judge could commit. The constitution confers upon the judiciary the duty to protect liberty for all citizens—not just those who are politically popular. In his craven, callous opinion, Sutton seems to have forgotten this fact. That’s unfortunate for the many gay families who live within the 6th Circuit, who must continue to live with instability and uncertainty. But it’s no small consolation prize for the rest of us that Sutton’s blunder led to one of the more memorable gay rights opinions ever penned.