Wednesday, September 23, 2015

Dred Davis?

“Read it in the writing on the wall”

I confess to being rather tired of hearing too much about the extremely small minority of individuals actively resisting the Supreme Court’s marriage equality decision in Obergefell v. Hodges this summer.  But, to quote Justice Scalia’s acerbic opinion in the Court’s 1992 case Planned Parenthood v. Casey, “it is beyond human nature to leave unanswered” “a few of the more outrageous arguments” opposing marriage equality, specifically, the cluster of attempts to counter Obergefell that invoke the Supreme Court’s pre-Civil War decision in Dred Scott v. Sandford. 

Dred Scott was an enslaved man of African descent who sued for his freedom in federal court.

Schomburg Center for Research in Black Culture, Photographs and Prints Division, The New York Public Library. Dred Scott Retrieved from

Simplifying a bit, his basic contention was that because the man holding him enslaved had taken Scott with him to live in a federal territory in which Congress had prohibited slavery in the statute widely known as the Missouri Compromise, this acted to free Scott; that his continued enslavement therefor violated his legal rights; and that the federal court had jurisdiction over this lawsuit under the terms of Article III of the Constitution because Scott was a citizen of one state and Sanford who claimed ownership of Scott was a citizen of a different state.  In a 7-to-2 decision where each Justice wrote his own opinion, the Supreme Court ruled against Dred Scott. 

Chief Justice Roger Taney’s lead opinion became emblematic of the case, and it reasoned first that the federal courts had no jurisdiction because Dred Scott as a presumed descendant of enslaved Africans did not count as a citizen, because those who wrote and adopted the Constitution regarded such persons as so inferior they and their descendants could never be part of the body politic. This, constitutional scholar and now Princeton University president Christopher Eisgruber has suggested, may be the original “originalist” constitutional decision,* one insisting that the Constitution’s meaning must be strictly limited to what was intended or perhaps understood by those who framed it.  Second, Chief Justice Taney reasoned that Scott also lost on the merits because he was not made free by the sojourn to a free territory, because Congress lacked power to prohibit slavery in the territories; the territories had to have the same prerogatives as the states, and the states of course chose whether to be free states or slave states.  Taney also reasoned that not only did the federal Constitution contain no grant of power to Congress to forbid slavery in the territories, but that even if it did a law that freed a slave “merely” because a slaveholder took him or her into a free territory would deprive the slaveholder of property without due process of law.  Hence, the Missouri Compromise’s ban on slavery in specified federal territory was unconstitutional.

In his Obergefell dissent, Chief Justice Roberts argued that Justice Kennedy’s majority opinion was crucially like Taney’s ruling in Dred Scott.  Roberts did not argue that Obergefell was like Dred Scott in that both adopted originalist approaches to constitutional interpretation; that is not true of the Obergefell opinion and, to the contrary, Roberts’s dissent is fairly congenial toward originalism. Nor, given the factual context of Obergefell, could Roberts repeat the common anti-abortion analogy between Dred Scott and Roe v. Wade, that the opinions wrongly denied full legal status and constitutional protection of life and liberty to a dramatically powerless segment of the human population.  Nor was his criticism that they were similar cases in that it was as unjust to let same-sex couples marry as it was unjust to deny African Americans’ citizenship.  Fortunately few in the U.S. have expressly gone so far in their condemnations of Obergefell.

Rather, the Chief Justice’s invocation of Dred Scott rested on the same concerns about how to interpret the Constitution that made Justice Scalia apoplectic in Planned Parenthood v. Casey, where in 1992 a majority of Justices refused to overrule Roe v. Wade.  Like the Casey majority that protected a woman’s right to choose to terminate her pregnancy relied on the Due Process Clause, the Obergefell majority went astray in Roberts’s eyes in holding that the freedom to marry a person regardless of gender was a fundamental right protected by the Due Process Clause.  For Roberts, the actual right at issue, framed narrowly as a right to “same-sex marriage” – I am completely dismissing his laughable claim that the right the Obergefell plaintiffs were claiming was “a right to make a State change its definition of marriage” – was not protected by law throughout U.S. history and thus should not be protected by courts under due process. 

For Roberts, and I quote at some length: “The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford.… The Court relied on its own conception of liberty and property in doing so.… In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the ‘fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control’ the Constitution's meaning, ‘we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.’” So, Roberts objected to the majority’s holding the Due Process Clause to protect substantive rights unless it could show that the narrowly framed right to marry a person of the same sex was “‘objectively, deeply rooted in this Nation’s history and tradi­tion,’ and ‘implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’”

Brian Brown, head of the marriage inequality group the National Organization for Marriage (or NOM), also has used Dred Scott to criticize the Obergefell majority’s use of the Due Process Clause to protect same-sex couples’ access to civil marriage.  “In terms of its legal reasoning,” he wrote, “Obergefell v. Hodges[] is the Dred Scott decision of our time.  It is illegitimate and completing lacking in constitutional authority.  It is the product of unaccountable judges legislating from the bench, usurping the role of elected officials and voters and imposing a social policy on the nation because they think they know best.”

This version of the Dred Scott criticism of Obergefell, like Chief Justice Roberts’s, flatly ignored the great deal of precedent and doctrine with which the Obergefell majority opinion engaged.  Roberts and Brown may not have liked the majority’s interpretive approach, but it was well grounded in Supreme Court practice and far from lawless.  Ignoring this “Dred again” argument might thus be the appropriate response.  But it is not the only use of Dred Scott that people resisting marriage equality are making. 

Although the vast majority of those charged with issuing marriage licenses in the country are complying with the Constitution and Obergefell, there are a tiny number of persons like the over-exposed Rowan County Clerk Kim Davis who have refused to do so.  Some of Davis’s defenders have tried to justify her resistance by reference to President Lincoln’s example with respect to the Dred Scott decision.  Brian Brown of NOM wrote that “like Dred Scott, America need not accept [the Obergefell ruling] as the final word, the ‘law of the land’ or even a decision worthy of respect,” and he quoted President Lincoln’s first inaugural address: “‘if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made … the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.’”  Similarly, Republican presidential candidate Mike Huckabee, defending Davis’s refusal to issue marriage licenses because of her religiously-justified belief that a same-sex couple cannot marry, claimed:  “Lincoln ignored the 1847 Dred Scott decision that said black people weren’t fully human.  It was a wrong decision.  And to say that we have to surrender to judicial supremacy is to do what Jefferson warned against, which is, in essence, surrender to judicial tyranny.”  And for Huckabee, ignoring odious Supreme court decisions is a patently appropriate response, a necessary response, because, he claims, “the Dred Scott decision … still remains to this day the law of the land.”

There is so much wrong with Huckabee’s Dred Scott defense of Kim Davis that it is hard to know where to start.  Let’s quickly set aside the fact that the case was decided in 1857, much closer to the start of the Civil War; Huckabee gets the date right elsewhere.  Let’s also set aside that Huckabee is apparently conflating the case with anti-abortion criticisms of Roe v. Wade, for, however disparaging it might have been, Dred Scott did not hold that black people were not fully human; it was about constitutional citizenship, not personhood.  Additionally, and this is harder to swallow, I realize, let’s set aside Huckabee’s profoundly ignorant claim that Dred Scott is the law of the land and so must be ignored.  The Supreme Court did not need to overrule that decision because, as Chief Justice Roberts pithily acknowledged in his Obergefell dissent, “Dred Scott’s holding was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox….”  The Thirteenth Amendment abolished slavery, the condition Mr. Scott unsuccessfully challenged, and the very first sentence of the Fourteenth Amendment guaranteed birthright citizenship to all regardless of race, thereby overruling the case’s primary, citizenship holding.

More fundamentally off-base as far as the Davis controversy goes, though, Huckabee is wrong to claim bluntly without qualification, repeatedly in multiple venues, that “Lincoln ignored” Dred Scott.  For the President took pains in his First Inaugural to note:  “nor do I deny that such decisions must be binding in any case upon the parties to a suit, as to the object of that suit.”  Lincoln never acted as though Dred Scott was a free citizen.  Indeed, he even went so far as to say – something opponents of Obergefell conveniently overlook – that even as to non-parties, the Supreme Court’s constitutional decisions “are also entitled to very high respect and consideration, in all parallel cases, by all other departments of the government.”

Let me be clear.  Kim Davis is one of the “parties to a suit” for access to civil marriage in Rowan County, Kentucky, and she was under a federal court order to issue licenses.  Her refusal to comply with that order while she was seeking its extremely unlikely reversal on appeal is thus in no way sanctioned by President Lincoln’s position on the permissibility of government officials who have not been bound by a court’s judgment not following Dred Scott.  Davis’s actions have been lawless, not in our constitutional order a lawful mode of resisting marriage equality.  And the American public sees it that way, with a new poll showing that almost two-thirds of respondents believe that Kim Davis should be required to issue marriage licenses to same-sex couples, and when asked more abstractly almost three-quarters of respondents believed in general that the obligation to treat everyone equally is more important than accommodating religious beliefs that conflict with the equality principle.

A constitutional amendment to override Obergefell would be a different matter from flat disregard of the decision, and it is another potential avenue of resistance to the Supreme Court’s constitutional interpretation there.  Dred Scott was overruled by two such amendments, the Thirteenth and Fourteenth.  Hypothetically, a Twenty-Eighth Amendment to the U.S. Constitution could be adopted to undo Obergefell.  There have already been calls for exactly that.  Recent Republican presidential candidate Scott Walker responded to what he sees as the wrong of Obergefell: “the only alternative left for the American people is to support an amendment to the U.S. Constitution to reaffirm the ability of the states to continue to define marriage.”  Republican presidential candidate Senator Ted Cruz takes the same position. Republican presidential candidate – anyone see a pattern here? – Rick Santorum one-ups them, espousing a federal constitutional amendment to limit marriage to couples with one man and one woman, echoing earlier anti-marriage equality proposals that would spawn a host of problems. Republican presidential candidate Mike Huckabee has agreed.  Indeed, the Republican Party Platform from 2012 calls for precisely such a marriage-defining amendment.  And of course the National Organization for Marriage says it will “[l]end support to other efforts to amend the constitution [sic] to repeal” Obergefell.

Not to be smug, but even without a crystal ball I am confident: It’s not happening, as Republican presidential candidates Jeb Bush and Sen. Lindsey Graham have recognized and so called for the Republican party to remove theanti-same-sex-marriage plank from its platform.  They understand that marriage for same-sex couples is not an issue that divides the people of the U.S. the way abortion has been. The country has been relatively close to evenly split over abortion, with fluctuations, since at least 1997.  Contrast marriage equality.  JulyGallup polling, about two weeks after the Obergefell decision, showed 58% of surveyed respondents supporting marriage equality (with only 40% opposing), not statistically lower than the numbers in May before the Court ruled.  Of equal importance, since Gallup started polling on the issue in 1996 support for marriage equality has been increasing, opposition has been decreasing, and support is highest among younger respondents, with more than three quarters of adults under 30 supportive in the July polling.  All indications are that opposition to marriage for same-sex couples is not simply a function of age, but rather of the time during which one grew up and formed early opinions. Younger people have difficulty understanding why so many have been hung up on keeping lesbigay people from marrying. And the younger people of today are the influential voters, legislators, and jurists of tomorrow. So perhaps this is an area where the Reverend Doctor Martin Luther King, Jr.’s observation rings true: “The arc of the moral universe is long, but it bends toward justice.”

* Christopher L. Eisgruber, “Dred Again: Originalism’s Forgotten Past,” Constitutional Commentary, Volume 10, Issue 1 (Winter 1993),

Monday, April 27, 2015

Fear and Loving in Washington

“And you and me are free to be you and me”

It is surprisingly quiet here outside the Supreme Court of the United States the day before the Court hears oral arguments in Obergefell v. Hodges and the other three marriage equality cases it is considering this term.  There are a few more protesters, defenders of the old order, than there were yesterday.  The lines, one for the general public and one for attorneys admitted to practice in the Supreme Court, are longer now than they were when I started waiting in the bar line yesterday.  And there are more reporters out covering the calm before the storm.

But the people who are present to be witnesses to history, whether they secure one of the coveted seats in the Supreme Court for the arguments or end up displaying support from the sidewalks outside the imposing marble columns and steps of our nation’s highest court, almost all appear to support full inclusion of same-sex couples and their families in U.S. civic life and to share a sense of hopeful anticipation.  Attitudes range from the guardedly optimistic to the giddily exuberant — “I know it’s not the most likely but I’m still hoping for a unanimous decision like Brown v. Aboard of Education!” one woman and attorney gushed.

Tenth or eleventh in the bar line (depending on when you asked the line coordinator), I am thrilled to be able to attend the arguments in these momentous cases.  Far more than resolving the short-term legal fate of same-sex couples and families in Michigan, Ohio, Kentucky, and Tennessee, the Supreme Court’s decision in Obergefell may make a profound declaration of the fundamental dignity and equality of lesbian, gay, and bisexual persons (of all genders) in the U.S. constitutional order, in every state and every city.  As a gay man who professionally studies constitutional and LGBT legal issues and has taught and written about them for years, it is a special honor and treat for me to meet some of the brave couples who have been suing in courts across the country.  Their wide-ranging efforts as much as anyone’s have been vital to the educational, legislative, and litigation work that has set the stage for tomorrow’s historic hearing.

I tend to use CruzLines for more legal analysis, and I will resume doing so.  (Double-teaching this semester, covering constitutional law not only at the USC Gould School of Law but also for my friends at the UCLA School of Law, has kept me from posting of late.)  But I could not let the more human aspects of this moment pass unmarked.  On the side of the plaintiffs are arguments based on constitutional text, principle, and history, as well as the undeniable power of love to open hearts and minds and transform a culture.  On the other side are largely, at base, arguments rooted in fear, sometimes understandable fear of the unknown, fear of change, as well as from some quarters a shameless loathing of lesbigay people, lesbigay relationships, indeed our very lives.  But experience does not support those amorphous fears; it disconfirms what Supreme Court precedent and the plaintiffs quoting it have dismissed as “undifferentiated fears,” and “a bare desire to harm a politically unpopular group” cannot justify discriminatory treatment of a group of persons under the Constitution.  It is time, it is past time, for the country to live up to its constitutional commitments.  
Love Must Win.

Saturday, January 17, 2015

Unveiling Marriage Equality?

“’Cause maybe they’ve seen us and welcome us all”

SCOTUSblog has a “flash” symposium on the Supreme Court’s grant of review Friday, January 16, in the four marriage cases from the Sixth Circuit, Same-sex marriage and the 14th Amendment.  My entry, UnveilingMarriage Equality?, addresses the issues the Court did, did not, and could take up in the cases; hazards a prediction regarding the ultimate outcome of the litigation; offers the skeleton of a defense of my position that the Constitution requires marriage equality; and sounds a note of caution about the Supreme Court’s recent spotty record on equality issues and the need for sustained work to bring about a more equal society in the United States.

Saturday, November 8, 2014

Sixth Circuit Marriage Decision Shuns Constitutional Law, Reprints Election Results

“We close our eyes, we never lose a game
Imagination never lets us take the blame”

On November 6, 2014, Judge Jeffrey Sutton joined by Judge Deborah Cooke issued the first federal appellate decision upholding state laws denying marriage to same-sex couples.  Judge Sutton’s opinion for the Sixth Circuit Court of Appeals in DeBoer v. Snyder reversed four federal trial courts that had ruled in favor of marriage equality, three that had decided the cases based on the parties’ legal arguments and one of which (the federal court in Michigan) had conducted a full trial.  The bottom line was that the appeals court upheld marriage discrimination in Kentucky, Michigan, Ohio, and Tennessee.  The majority opinion in DeBoer may or may not make “an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,” as Judge Martha Craig Daughtrey suggested in dissent.  But it represents a departure from the fairly well established (in principle) role of the federal courts as vindicators of constitutional rights of vulnerable minorities.  Instead, Judge Sutton appears to treat readers not to the faithful application of established constitutional law but rather to a disquisition on the joys of majority rule.

As Daughtrey notes, Sutton cannot seem to bring himself to confront the real constitutional questions posed by the actual legal judgments he’s reviewing.  His wrongheaded framing of the issues is apparent from the introduction to his opinion, where he suggests that what he’s considering “is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now ….”  No, the issue is whether laws excluding same-sex couples from civil marriage violate equal protection or due process rights.  He therefore misses the boat when he suggests that this is merely a “policy call” (even if a “vital” one)

As he did at oral argument in the case, Sutton fetishizes democracy-as-majority-rule, treating readers to precise voting statistics for each state at issue  (“nearly fifty-nine percent of Michigan voters opted to constitutionalize the State’s definition of marriage”; “Seventy-four percent of the voters [in Kentucky] approved the amendment [excluding same-sex couples from marriage]”; “sixty-two percent of Ohio voters approved an amendment to the Ohio Constitution along similar lines”’ “Eighty percent of the voters [in Tennessee] supported the amendment” to exclude same-sex couples from civil marriage).  Only by emphasizing such doctrinally irrelevant facts over the constitutional rights at issue can he claim that these varying challenges “all come down to the same question: Who decides?  Is this a matter that the National Constitution [sic] commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?”  (Setting aside the heterosexually identified, able-bodied, Christian white male optimism this claim of reliable protection reflects, Sutton’s ego is showing here, for the Constitution applies just as much in state courts as it does in federal courts.)

Rather than identify the constitutional challenges, articulate the relevant doctrinal frameworks, and apply them to reach a conclusion, Sutton’s opinion meanders through “many ways to think about the issue.”

First, he talks about the “Perspective of an intermediate court.”  One might expect here a statement of the rule that appellate courts are to review trial courts’ factual findings, like those made by the federal district court in the Michigan case after a full trial, deferentially, reversing only if they are “clearly erroneous.”  But no, he later ignores this rule and merely disparages these as “factual findings made by one unelected federal judge.”  Sutton appears not really to be analyzing the role of intermediate courts but rather what he thinks is proper of any federal or state court other than the Supreme Court, i.e., lower courts.  And so he turns to the Supreme Court’s 1972 summary affirmance (an order, with no explanatory opinion) upholding Minnesota’s laws barring same-sex couples from marrying in Baker v. Nelson.  He could have and should have joined the dozens of other judges who have held, following Supreme Court precedent, that “subsequent doctrinal developments” dictate that whether or not the Constitution allows states to exclude same-sex couples from civil marriage now does present a substantial federal question, even if he didn’t agree on the merits that such bans were unconstitutional.  (See CruzLines on The Baker v. Nelson Argument Against Marriage Equality Litigation.)  Instead, Sutton ignores the Supreme Court’s reasoning about dignity and equality in U.S. v. Windsor – the 2013 case that held a key part of the federal so-called Defense of Marriage Act (DOMA) unconstitutional – treating the opinion as if it were only about federalism.  He then uses Supreme Court pronouncements about decisions on the merits as an excuse to impose new rules for lower courts to handle summary dispositions (orders issued with no opinion or other explanation).  Given that little feat of what some might term judicial activism, it’s a bit cheeky of him to insinuate that all of the many judges who have ruled in favor of marriage equality have behaved lawlessly, “aggressively … assum[ing] authority to overrule Baker [them]selves.”

What then follows is 25 pages ofdicta.  Having concluded that Baker v. Nelson is binding on lower courts and compels rejection of the plaintiffs’ constitutional claims, Sutton should have ended his opinion.  Instead, he rambles through a potpourri of constitutional issues, substantive and institutional, gratuitously rejecting on the merits arguments that he seemingly already held he could not reach.

Sutton suggests that the “original meaning” of the Fourteenth Amendment shows that it does not forbid laws excluding same-sex couples from marriage.  Presumably, here, he is trying to appeal to the mode of constitutional interpretation known as originalism.  Although earlier, Reagan-era versions of originalism commonly called for judges to interpret the Constitution in accord with the original intent of its framers, that approach was subjected to such academic criticism that its defenders shifted ground.  Now, most academic proponents of originalism treat framers’ intent as such irrelevant and instead prescribe looking to the original meaning of the words they inscribed in the Constitution.  Sutton’s pronouncements about what “the people who adopted the Fourteenth Amendment understood it to require” (my emphasis) appear designed to signal attention to original meaning.  But he really is falling back into what is sometimes called “original expected applications” originalism, addressing not the semantic meaning of “equal protection,” “due process,” or “privileges or immunities of citizens,” but only how such people thought those constitutional clauses would apply.  Yet that is a largely discredited approach to originalism, for a variety of reasons including the powerful one noted by Judge Daughtrey in her dissent:  “The quick answer is that [those framers] did not understand that [the Fourteenth Amendment] would also require school desegregation in 1955 or the end of miscegenation laws [banning interracial marriages] across the country ….”  Sutton tries to bolster his original-expected-application argument with tradition, which the Supreme Court relied on in recent cases about other constitutional rights, not equal protection or the fundamental right to marry.  But his states-have-long-done-marriage-that-way backstop is subject to the same objection – that our constitutional practice has frequently interpreted constitutional rights in a principled fashion in ways differing from what the framers might have expected or even from how many states have often done things.

Sutton then argues that law excluding same-sex couples from marriage survive rational basis review, the most deferential form of scrutiny courts use to assess laws challenged as violating the Equal Protection Clause.  Here, he buys into the same laughable arguments about unintended procreation (with a soup├žon of natural law “gender complementarity”) that almost all other court cases have rejected since Windsor,.  Sutton tries to deny governmental responsibility and place it all on Nature and “biological reality”:  “It is not society’s laws … that matter …, but nature’s laws (that men and women complement each other biologically) ….”  He tracks Justice Alito’s Windsor dissent in arguing that there is a different view of marriage, one grounded in the bond between spouses, but claiming that the Constitution does not limit states in choosing between procreative (“conjugal,” in Alito’s natural law jargon) or companionate marriage – all without recognizing that the actual characteristics of states’ actual marriage laws have already sided with companionship over so-called “natural” procreation.  And without addressing the conclusion of countless courts that excluding same-sex couples from marriage in no way advances even hypothetical procreation-focused interests.  Sutton’s rational basis analysis ultimately appears to depend primarily on his logically prior conclusion (or, perhaps, premise) that “elected legislators, not life-tenured judges” should be deciding whether to allow same-sex couples to marry.

Sutton next turns to cases where the Supreme Court has invalidated state laws under rational basis review, often on the basis of unconstitutional legislative “animus,” claiming that “it usually has been due to the novelty of the law and the targeting of a single group for disfavored treatment.”  It is on this ground that he distinguishes legal provisions limiting same-sex couples from marriage from the anti-gay state constitutional amendment the Supreme Court held unconstitutional in Romer v. Evans (1996) and a zoning law the Court held unconstitutional as applied to a group home for intellectually disabled persons in Cleburne v. Cleburne Living Center (1985).  Yet Sutton does not so much as mention the Court’s other prominent rational basis invalidation, Department of Agriculture v. Moreno in 1973, which dealt with food stamp eligibility rules.  And even his treatment of Cleburne is simply wrong.  He claims that the city of Cleburne, Texas “enacted a new zoning code with the none-too-subtle purpose of closing down” the group home.  Yet nothing in the Supreme Court’s decision, the appellate court’s decision, or the parties’ briefs in the Supreme Court in Cleburne supports that.  All of these sources indicate that the city simply ruled certain provisions of its preexisting zoning law to apply to the group home at issue. 

Similarly, Sutton claims that by the time Michigan and many other states were enacting state constitutional bans on same-sex couples’ marrying from 2004 to 2006, “several state courts had altered their States’ traditional definitions of marriage under the States’ constitutions.”  This too is factually wrong, or at least grossly misleading.  A Hawai`i state court had held its marriage exclusion unconstitutional in 1996, but its judgment was stayed pending appeal to the state supreme court, which never ruled in the case because the voters amended the Hawai`i constitution to give the legislature the power to keep on fencing out same-sex couples.  A similar result obtained with respect to an Alaska state court decision that ruled that heightened scrutiny should apply under the state constitution to Alaska’s exclusion of same-sex couples from civil marriage.  Indeed, until the fiftieth anniversary of Brown v. Board of Education on May 17, 2004 when the Massachusetts high court’s decision in the Goodridge case went into effect, no state authorized same-sex couples to marry, and at the time of the ballot measures Sutton discusses, Massachusetts was the only state where the marriage laws had in fact been altered. Sutton’s fervid desire to deny the plaintiffs’ constitutional claims apparently has blinded him to the facts of past Supreme Court cases as understood by the Justices themselves.

Turning next to the plaintiffs’ argument that excluding them from civil marriage violates their fundamental right to marry under the Constitution, Sutton makes the usual and improper anti-equality move of building the identity of the rights holders into the right, so in his hands it becomes not “the right to marry” but a supposed “right to same-sex marriage” at issue.  And that right, of course, he concludes is not supported by “bedrock assumptions about liberty.”  His argument in this section, to the extent one can actually extract an argument from its collection of scattershot assertions, seems to be grounded in assumption:  He takes a reference to marriage’s being “fundamental to our very existence and survival” in Loving v. Virginia and assumes that means the Supreme Court there was saying the constitutional right was only a right to marry someone of a different sex, though the Court of course did not write that.  He assumes, in a bizarre and legally irrelevant counterfactual, that the Court would not have found a constitutional violation in 1968 “[h]ad a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia.”  This kind of retrospeculation is in tension with his refusal to give any weight to signals from the Supreme Court about marriage equality such as the Court’s denial of review in the Fourth, Seventh, and Ninth Circuit marriage cases.  And Sutton’s implication that it is relevant that the Supreme Court has never ruled on whether the Constitution puts limits on when or whether states must let people divorce, or marry cousins, or marry at certain ages, elevates non-holdings – Sutter does not even suggest that anyone ever asked the Court to take up such issues – to rejections of a constitutional right to marry the person of one’s choice.  (He fails to mention that his arguments-by-insinuation would seem mostly to apply not just to the currently challenged exclusions of same-sex couples from marriage but also to the exclusion of different-race couples held unconstitutional in Loving.)

Winning a triple-dicta trifecta, Sutton next takes up whether the political vulnerability of a historically subordinated group like lesbigay people means courts should use heightened scrutiny here to assess states’ laws that discriminate against them.  Remember that, having concluded that Baker v. Nelson resolves the plaintiffs’ constitutional claims against them, all of his subsequent discussion is dictum.  Yet Sutton then himself notes that Sixth Circuit precedent, binding on three-judge panels of that Court of Appeals such as the one that decided DeBoer, rejects heightened scrutiny.  So, Sutton has just provided a second reason why his discussion is dictum.  And then he claims that the Supreme Court’s not having already ruled that heightened scrutiny applies to sexual orientation discrimination is “another impediment”; were he right that it is an obstacle, this would give a third reason why he ought not even be discussing lesbigay people’s political vulnerability. 

But Sutton is clearly not content to rest there in his scorched-earth campaign against the many arguments supporting constitutional rights to marriage equality.  Instead, his majority opinion goes on to make the fundamentally misguided argument that, because the mixed-sex requirement for civil marriage was supposedly adopted “independently” of the “record of discrimination” against lesbigay people, “[t]his order of events prevents us from inferring from history that prejudice against gays [sic] led to the traditional definition of marriage” (my emphasis).  But this is not how the structure of equal protection doctrine works.  Courts deciding whether to apply heightened scrutiny to a certain category of classification in law (e.g., race classifications) do not focus on the particular use of the classification at issue in a case, like internment of Japanese Americans.  Rather, they look generally at a history of discrimination (and other factors) to decide that, for example, race classifications as such are subject to strict scrutiny.  Then courts apply that scrutiny to the challenged discriminatory law, such as Japanese internment, looking at the government’s purpose behind the law and how narrowly tailored the law is to that purpose – without limiting relief to situations where the plaintiff can establish that the particular law challenged definitively flowed from that history of discrimination.  Equal protection doctrine calls for strict scrutiny of all racial classifications, and intermediate scrutiny of all sex classifications.

Essentially, Sutton is replicating the mistake of Justice Alito’s dissent in Windsor, where the Justice wanted to say that he did not have to decide whether sexual orientation classifications should be subject to heightened scrutiny generally because he would not apply that scrutiny in the context of marriage discrimination against same-sex couples.  Their rejection of the general structure of equal protection doctrine merely underscores how personally committed they are to rejecting same-sex couples’ justice claims regardless of what constitutional law says.  This results-oriented judging may explain Sutton’s mischaracterization of Windsor as ruling that “Congress had no power to enact ‘unusual’ legislation that interfered with the States’ long-held authority to define marriage” and as “reprimand[ing Congress] for entering the fray” over how to define marriage. It wasn’t state supremacy over marriage law or Congress’s taking any position on definitions of marriage that made DOMA unconstitutional in Windsor; it was the federal government’s pursuing a discriminatory purpose to demean same-sex couples and their families and lack of sufficient countervailing benefit from the government’s refusal to recognize marriages of same-sex couples.

Making a token nod in the direction of existing doctrine, Sutton notes that discrimination against noncitizens is treated as more suspect when states do it than when the federal government does.  But this is not simply because of “federal preeminence in foreign relations,” the reason Sutton suggests that “state preeminence in domestic relations” means anti-gay discrimination in state marriage laws should be reviewed deferentially.  Rather, the Supreme Court has long said that Congress has plenary power over immigration.  It is that supposedly unrestricted power that the Court has, probably wrongly, used to justify deferential review of federal discrimination against noncitizens.  States, however, do not have plenary, unrestricted power over domestic relations laws such as marriage laws.  Windsor itself emphasized that “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.”

Sutton’s final “way to think about” state marriage bans considers “evolving meaning” or “living constitutionalism.”  He suggests that the American people have not yet come to “define marriage in terms of affirming mutual love” rather than in terms focused on procreation.  (Presumably he has segmented the American people into the people in each state because polling shows that a majority of Americans support marriage equality.)  But again, state marriage laws do not limit marriage to a reproductive model, so the prospect of ‘in-house’ pregnancy, accidental or otherwise, ought not be understood to provide an adequate justification for laws categorically excluding same-sex couples from marriage while categorically allowing different-sex couples to marry.  Even Justice Scalia himself professed this in his 2003 dissent in Lawrence v. Texas.  (That pronouncement is conveniently ignored by Sutton.)  Sutton also tries to suggest that just as Lawrence looked to European Court of Human Rights precedent striking down laws against consensual sexual acts between people of the same sex, “neutral principles” should make likewise relevant a recent ECHR case finding no right to marry for same-sex couples under the governing European treaty.  He fails to note, however, that Lawrence turned to ECHR law to refute earlier judicial intimations about the values of Western civilization.  The marriage plaintiffs here are not claiming that their U.S. constitutional rights are established by virtue of Western democratic consensus.

Turning finally to the question whether a state must recognize the marriages same-sex couples entered in other states, Sutton finds that question largely resolved by his conclusion that state refusals to let same-sex couples marry is constitutional.  He rejects the inference of animus that the lower court found in Ohio’s categorical refusal to accept the validity of marriages of same-sex couples when the state does not categorically reject marriages allowed in other states, such as marriages between first cousins.  He does so for the general reason that “States have always decided for themselves when to yield to laws of other States.”  But that is not responsive to the plaintiffs’ argument, which challenges the particular way these states have decided to recognize or not to recognize marriages from other states.  So Sutton also claims that Ohio law does reject the validity of more than just same-sex couples’ marriages.  Yet he is relying on what is probably dictum from an Ohio court case, not the statutory or constitutional provisions of Ohio, and even the language he quotes does not identify any marriages that some other state actually allows but Ohio does not.

There is plenty more to object to in Sutton’s crass opinion.  In apparent response to the well-taken point in Judge Daughtrey’s dissent that he “treats both the issues and the litigants here as mere abstractions,” Sutton sets up a laughably false equivalence:  “Just as gay individuals are no longer abstractions, neither should we treat States as abstractions.”  But states are political abstractions, and no matter that he is right that “real people” were “behind” the discriminatory state constitutional amendments challenged here, a restriction on their ability to deny rights to others is in no way comparable to the harms visited upon same-sex couples and their families by marriage exclusions.

One might object to Sutton’s paternalism (which had been on display at the oral argument in the cases).  “Even if we think about today’s issue … solely from the perspective of the claimants in this case,” he claims, “it is difficult to call” reliance on “state democratic forces to fix the problems [with marriage laws] as they emerge,” a process “already coming to terms with a new view of marriage, a failure.”  When people are dying before they can marry their beloved partners, simply because they are of the same sex, this claim displays not just paternalism but lack of discernment.  The same is true where he writes:
But any loss of dignity and respect on this issue did not come from the Constitution.  It came from the neighborhoods and communities in which gay and lesbian couples live, and in which it is worth trying to correct the problem in the first instance – and in that way “to allow the formation of consensus respecting the way the members” of a State “treat each other.”
In Sutton’s view, “the federal courts have no long-lasting capacity to change what people think and believe ….”

This echoes his suggestion at oral argument that lesbigay people would be better off winning marriage equality through the political process than through litigation, and it echoes the New Jersey Supreme Court when it refused in 2006 to require that state’s legislature to open up marriage itself – rather than give rights through some separate-but-(un)equal status like civil unions or domestic partnerships.  There, the New Jersey court wrote:  “Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society.”

Both the New Jersey court’s and Sutton’s view echo the moral obtuseness of the Supreme Court that upheld a racial segregation law in Plessy v. Ferguson.  Homer Plessy had insisted that the challenged railroad car segregation law stamped black people with a legal badge of inferiority, but the Court did not see it that way.  The Plessy majority believed that Plessy’s arguments “assume[d] that social prejudices could be overcome by legislation,” a proposition those Justices rejected.  “If the two races are to meet upon terms of social equality,” they said, “it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.”

Today Plessy is almost universally condemned.  The U.S. Supreme Court has declared that “Plessy was wrong the day it was decided.”  A key way in which Plessy misinterpreted the Constitution was its failure to appreciate government’s role in perpetuating social inequality.  It would not have made black and white people socially equal, or compelled “social acceptance” to quote the New Jersey Supreme Court majority, if the Court had held segregation unconstitutional.  It would have simply stopped government from lending its weight to exclusionary impulses of one social group.  Likewise, when political majorities adopt discriminatory marriage laws, those laws do deny dignity and respect to same-sex couples and their families.  They do this even if the individual voters who support such laws also deny dignity and respect.  If Sutton actually respected lesbigay people, he would at least see that (even if in the end he upheld the discriminatory laws).  Instead, he worries about demeaning “the citizenry,” the large majorities in certain jurisdictions that continue to insist on fencing same-sex couples out of an important legal institution.  Talk about misplaced priorities.