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 soupçon 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.

25 Pages of Dicta, or What the Supreme Court Could Say to the Sixth Circuit

And hey, it doesn’t matter what you say

’Cause you are invisible to the world

On November 6, 2014, in DeBoer v. Snyder, a 2-1 majority of Sixth Circuit judges reversed rulings federal trial courts in Michigan, Kentucky, Ohio, and Tennessee had issued in favor of marriage equality.  Unless the parties decide to seek and are granted en banc review of that decision by all the judges of the Circuit, which early news reports indicate is not the case, the Supreme Court will quite likely grant review in DeBoer.  (There are other avenues to Supreme Court review, helpfully mapped out here by Lyle Denniston on SCOTUSblog.)

For the case presents a “circuit split,” a conflict among rulings on the constitutionality of state laws excluding same-sex couples from marriage.  Although the Court denied review in the cases from the Fourth, Seventh, and Ninth Circuits, clearing the way for same-sex couples in those states to marry, there was at the time no federal Court of Appeals that had ruled the other way, at least since the Court’s own 2013 decision in U.S. v. Windsor invalidating a key section of the federal government’s so-called Defense of Marriage Act.  Now, with the Sixth Circuit’s anti-equality decision, the constitutional questions around marriage bans are well teed up for the Court to review.

If, however, the Court was not quite ready to take the issue up on the merits this term, there is a temporizing move it could make.  If it wanted to let more lower courts rule, and likely marriage equality to come to more states, before it finally settles the constitutional questions involved, the Court could reverse and remand the case to the Sixth Circuit for a do-over.

Judge Jeffrey Sutton’s majority opinion in DeBoer relies at the outset on the Supreme Court’s 1972 summary affirmance (a one-sentence order, with no explanatory opinion) upholding Minnesota’s laws barring same-sex couples from marrying in Baker v. Nelson.  (I posted an article addressing this case on CruzLines here.) Sutton appears to rule that Baker is still binding on lower courts, despite many subsequent doctrinal developments including the Supreme Court’s pro-equality decision in Windsor.  If he were right that Baker disposes of the plaintiffs’ constitutional claims, leaving lower federal courts no option to rule in their favor, there would be no need for Sutton to address arguments about the definition of the constitutional right to marry or the kind of review courts should use for laws that discriminate against lesbigay people.  Indeed, the 25 additional pages the majority opinion wrote would all be dictum, legally unnecessary and not binding, and arguably improper for Sutton even to have included!

So, a Supreme Court majority that wanted a little more time could grant review in DeBoer and simply hold that Baker v. Nelson is no longer the law of the land, that the constitutionality or unconstitutionality of marriage bans is now a substantial question, without actually proceeding to answer that ultimate question.  The Court could then reverse Sutton’s decision holding to the contrary, treat the dicta as dicta, and remand the case for reconsideration by the Sixth Circuit in light of the Supreme Court’s declaration that Baker does not block lower courts from reaching the constitutional merits of state marriage bans.  This would send a powerful signal to the Sixth Circuit Court of Appeals that it should take seriously the plaintiffs’ constitutional arguments, something the majority opinion in DeBoer does not really do.

Of course, this would extend further the time during which same-sex couples in marriage inequality states would continue to be treated as second-class citizens and suffer the vulnerability to which they and their families are exposed by reason of those states’ refusal to allow or recognize marriages of same-sex couples.  There are accordingly serious reasons for the Court to take up the marriage equality issue sooner rather than later, if it is going to rule in favor of equal access to marriage.  But those serious issues were there when the Supreme Court was considering the marriage equality cases from the Fourth, Seventh, and Ninth Circuits, yet the Court ducked them then.  Whether the addition of conflict among the Courts of Appeals is enough to spur the Justices to action now remains to be seen.

Judge Posner Calls Bullshit on State Marriage Bans

“You asked for the truth and I told you

Through their own words

They will be exposed”

A day after a federal trial judge upheld Louisiana’s law denying marriage and marriage recognition to same-sex couples (discussed here), a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit affirmed decisions striking down Indiana’s and Wisconsin’s marriage exclusions, laws barring same-sex couples from marrying and denying recognition to those who married elsewhere.  Judge Posner’s September 4 opinion for the court in Baskin v. Bogan (opinion here) makes the Seventh Circuit the third consecutive federal appeals court to rule for marriage equality.  The pithy opinion in Baskin (for example, in explaining the background of Indiana’s 1997 reenactment of its ban on same-sex couples marrying: “The legislature was fearful that Hoosier homosexuals would flock to Hawaii to get married”) suffers from little constitutional jargon and boasts much common sense, in plain language devastating the ridiculous arguments that those defending marriage have been making that only more recently have begun to meet with the scorn they warrant.

Although recognizing that the cases before the court “formally” were about anti-gay and ‑lesbian discrimination, Posner maintained that “at a deeper level” they were “about the welfare of American children.”  This focus on children could be slightly off-putting to lesbigay persons with no children nor desire therefor.  After all, it is those adults who wish to marry a partner of the same sex against whom state marriage exclusions directly discriminate.  Nevertheless, as a gay man childless by choice, I for one am not too proud to accept marriage equality even if it rides in on a parenting bandwagon.  This lens on state marriage exclusions has significantly been foisted on courts by states, whose defenses of their discriminatory laws now largely boil down to claims of protecting children. 

Moreover, Posner does such a thorough job demonstrating just how unrelated or indeed counterproductive laws limiting marriage to different-sex couples really are to children’s welfare that his opinion could prove influential with Justice Anthony Kennedy when the Court takes up the constitutionality of state’s denying marriage to same-sex couples.  After all, Justice Kennedy expressed great concern for the plight of the children of same-sex couples at oral argument in United States v. Windsor, and his opinion for the Supreme Court in that case striking down the federal statute refusing to recognize valid marriages of same-sex couples prominently included that concern.  (Posner’s emphasis on (some of) the real underlying equality concerns in Baskin over formal constitutional doctrine could also resonate with Justice Kennedy, whose majority opinions in several “gay rights” cases are widely regarded as not closely tracking conventional doctrine.)

The court’s opinion treats the “irresponsible procreation” defense of the states’ marriage exclusions with perhaps more seriousness than it deserves; even Judge Posner’s rendering of the basis premise – the states’ “assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage” – gives it a measure of undue respect.  But don’t be fooled into thinking the court has been fooled by this risible defense; it is not.  And the opinion makes clear how laughable the court would find the argument (were the stakes not so real for all those harmed by the marriage exclusions, children and adults alike).

The opinion’s calling out of the states’ arguments in defense of discrimination range from the sublimely subtle to the unmistakably obvious.  At the former end of the spectrum, consider Judge Posner’s use of the word “brace”:  It appears twice in the opinion.  A brace is a pair, and the opinion uses the word twice, thus linking the referents.  The first time, it refers to “our brace of cases,” one appeal by Indiana and one by Wisconsin, with both states objecting to federal trial court decisions holding their marriage exclusion laws unconstitutional.  The second time the opinion uses the term, in illustrating the lack of moral weight carried by traditions just because they are traditions, it refers to presidential pardons of “a brace of turkeys” at Thanksgiving.  Thus, the opinion links the states’ defenses of their marriage laws with turkeys – which is what those defenses are, as the court’s opinion makes quite clear.

On the less subtle side:  “The only rationale  that the states put forth with any conviction – that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended,” Judge Posner writes, “is so full of holes that it cannot be taken seriously.”  The court pointedly asks why then clearly infertile heterosexually identified persons are allowed to marry when same-sex couples are categorically banned?  The state’s “involuted” (complicated, abstruse) arguments don’t work.  The suggestion that “non-procreating opposite-sex couples who marry model the optimal, socially expected behavior for opposite-sex ccouples whose sexual intercourse may well produce children” he rightly deems “a strange argument; fertile couples don’t learn about child-rearing from infertile couples.”  And the state’s retreat to privacy doesn’t save the argument particularly since Indiana chose to let first cousins marry but only at an age when women clearly were not fertile.  As Posner sums it up:  “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry.  Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry.  Go figure.”

As for the states’ “argument from the wonders of tradition” (snark!), the court dispatched it mercilessly, concluding part of its analysis:  “If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause, as in Loving.”

Technically, the opinion concludes that laws excluding same-sex couples from marriage should be subject to heightened judicial scrutiny, not deferential rational basis review.  It settles on that level or “tier” of scrutiny only after carefully going through factors that the Supreme Court has said are relevant to the determination (such as general irrelevance to the trait on which the discrimination was based, the trait’s immutability, a history of discrimination against the group at issue).  Would that the federal trial judge who the day before upheld Louisiana’s marriage exclusions nominally under rational basis review – though he failed to complete even that deferential scrutiny – would have done the same before rejecting heightened scrutiny.

At the end of the day, or almost the end of the opinion, the court concludes, as more and more people are realizing, "the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.  May (at least five Justices on) the Supreme Court say the same when they choose and resolve one or more marriage lawsuits, as Justice Ginsburg expects will happen by the end of June 2016, or perhaps even by the end of June 2015.

The Louisiana Marriage Inequality Decision and the Missing Link

“It’s here the family’s broken

And it’s here the lonely say

That the heart has got to open

In a fundamental way

Democracy is coming to the U.S.A.”

On September 3, 2014, Judge Martin Feldman became the first judge since the Supreme Court’s 2013 decision in United States v. Windsor to hold against the constitutional claims of same-sex couples seeking the right to marry.  In Robicheaux v. Caldwell (opinion here), Judge Feldman upheld Louisiana’s statutory and state constitutional provisions barring same-sex couples from marrying and refusing recognition to the lawful marriages they enter in other jurisdictions.  Breaking with a staggering string of decisions unanimously affirming that the Constitution guarantees same-sex couples marriage equality, the Robicheaux decision is rife with heterocentric prejudice, disparagement of the numerous judges who have ruled otherwise, democracy fetishization at the expense of the judiciary’s rights-protecting role, and logical gaps.  Sadly for the people of Louisiana, whose rights are being denied daily, it may be some time before this ruling is corrected on appeal; with the Fifth Circuit stocked with right-leaning judges, waiting for a Supreme Court decision may prove necessary.

The opinion’s heterosexist perspective is most clearly on display when Judge Feldman characterizes the plaintiffs’ interests as “personal, genuine, and sincere lifestyle choices.”  The notion that for lesbigay people marrying is merely a “lifestyle choice,” whereas marriage is some central, “fundamental” right and institution for heterosexually identified persons, is deeply offensive.   This language resonates with the unfortunate trope, oft applied to lesbigay people, of what legal scholar Marc Fajer has called the “sex-as-lifestyle” presumption.  As one lesbian comic quipped years ago, why is it that straight people get lives but gay people only get lifestyles?

The judge’s opinion also displays its bias in depicting a dystopian future that may follow if the Pelican State allows same-sex couples to marry.  “Perhaps, in the wake of today’s blurry notion of evolving understanding, the result is ordained.  Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage.” (emphasis added)  Seemingly, then, he thinks same-sex couples devalue marriage.

Judge Feldman’s opinion sets himself up as the voice of reason in the face of “this passionately charged national issue,” as his opening paragraph characterizes it.  This is in contrast to the many, many state and federal judges who have held discriminatory marriage laws unconstitutional, apparently not in good faith.  He impugns either their intellect or their integrity:  “That federal courts thus far have joined in the hopeful chorus that the tide is turning seems ardent and is arguably popular, indeed, poignant, outcome (whether or not credibly constitutionally driven).” [sic, sic, sic] Perhaps the judge thinks that these courts are in cahoots with advocacy organizations like Lambda Legal, the ACLU, and the National Center for Lesbian Rights, for he informs us (emphasis added) that he “has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue of same-sex marriage.”

That is just one example of Judge Kelly’s fetishization of democracy at the expense of the intended independent role of the federal judiciary.  (His solicitude for democracy is inconsistent, for he excoriates the Defense of Marriage Act for its effect on New York’s “democratically debated and then adopted” law allowing same-sex couples to marry but does not note that DOMA itself was “democratically debated and then adopted.”)  At the outset his opinion sets up the “lifestyle choices” of lesbigay persons – or so I assume, since “lesbian,” “gay,” and “bisexual” appear nowhere in the opinion, and even “homosexual” appears only once in a direct quotation, perhaps reflecting discomfort in even acknowledging lesbigay people as a group of people –as clashing with “convictions regarding the value of the democratic process.”  He refuses to apply any heightened scrutiny to sexual orientation discrimination because the Supreme Court has never held that to be required – true enough, but neither has the Court held such scrutiny forbidden – and because, he says, doing so would “demean the democratic process.”  He repeatedly quotes the late Justice Lewis Powell’s dissent in a death penalty case, touting Powell’s “emphatic trust in deference for free and open debate in a democracy” [sic].

 “Same-sex marriage is not recognized in Louisiana,” Judge Feldman writes, “and is reasonably linked to the democratic process.”  The state’s discriminatory marriage laws, its “regime,” he says, “pays respect to the democratic process; to vigorous debate.”  He credits Louisiana’s assertion that it has “a legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through the democratic process” [sic].  But as a matter of constitutional doctrine, that cannot be right.  Most government discrimination challenged under the Equal Protection Clause is subject only to a deferential form of judicial scrutiny, “rational basis review,” which requires only that the government action have a loose connection (be “rationally related”) to a “legitimate governmental interest.”  If a preference for proceeding via the democratic process counted as a legitimate governmental interest (which he seems to say, since “fundamental social change” is offered as an example, not a limit to his reasoning), then no statute or initiative or referendum would fail rational basis review, for a state could always claim that its democratically adopted law forbidding X or requiring Y is a rational way of preferring that policy on X or Y be set democratically.

The judge protests that it is not his place “to resolve the wisdom of same-sex marriage.”  But no one was asking him to.  He was asked only to rule on the plaintiffs’ claimed constitutional rights.  It is therefore somewhat baffling that one of Justice Powell’s dissenting pronouncements Feldman thinks pertinent is the Justice’s claim that “[i]n a democracy the first indicator of the public’s attitude must always be found in the legislative judgments of the people’s chosen representatives.”  Public attitudes are not generally relevant to constitutional rights.  As U.S. Court of Appeals judge Richard Posner explained the next day in an opinion holding Indiana’s and Wisconsin’s marriage bans unconstitutional, “[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”

Judge Feldman either does not agree, or is inept insofar as equal protection law goes, or let his own “passions” lead him doctrinally astray.  For his opinion failed to apply the doctrine he announces.  Even if sexual orientation discrimination did not deserve heightened judicial scrutiny, as Feldman rules, it would still be subject to rational basis review, as Feldman also says.  But as I already noted, this means that the refusal to let same-sex couples marry or recognize same-sex couples’ marriages from other jurisdictions must bear a rational relationship to a legitimate governmental interest.  Even if one granted, as Feldman holds (and falsely attributes to Justice Kennedy’s opinion for the Supreme Court in Windsor) that Louisiana has a “legitimate interest in linking children with intact families formed by their biological parents,” the exclusion of same-sex couples must still somehow rationally relate to that interest.  Yet Feldman’s opinion nowhere ever even tries to provide any link between excluding same-sex couples from civil marriage and (somehow) linking children to intact bio families.

I’m not saying Judge Feldman is a Neanderthal, but his opinion upholding Louisiana’s marriage discrimination has a missing link, one that in combination with its other deficiencies should earn it a failing grade, or at best an Incomplete.