“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.”
