All The Wrong Reasons to Ban Gay Unions
Imagine you’re Crash Davis. Yes, the minor-league baseball player memorably portrayed by Kevin Costner in Bull Durham. You know you’re not going to make it to the big leagues. You even know your team is unlikely to win in the minors. But you’re a professional, and you give it all you’ve got.
This, it seems to me, is the position of Appellate Judge Jeffrey Sutton, a respected conservative thinker who’s unlikely to make it either to the Supreme Court bench or the right side of history when it comes to same-sex marriage, but who is still a judge’s judge, a consummate professional. What would you do?
Probably you’d write something like the majority opinion in DeBoer v. Snyder, a thorough rebuke to the marriage-equality movement that let stand the “traditional” marriage restrictions of Ohio, Michigan, Kentucky, and Tennessee. Judge Sutton’s opinion is a virtuosic effort to provide as many reasons as possible to reject gay marriage—a tour de force no less impressive for being utterly self-contradictory.
After all, someone had to do it. Were state same-sex marriage bans really going to go undefeated? 53-0 before the Supreme Court finally took up the issue? Was there no one who could mount a defense of a practice that was universal until just a decade ago?
Judge Sutton, writing for himself and one member of the Sixth Circuit’s three-judge panel, did better than that. He’s offered not one defense but eight, in what amounts to an anthology of amicus briefs for the future Supreme Court case. Not only has he given the court a circuit split; he’s given the court several opinions split against one another.
First, and least convincingly, the court argues that it is better “to allow the democratic processes begun in the states to continue” debating the merits of same-sex marriage, rather than “take a poll of the three judges on this panel.” As noted by Judge Martha Craig Daughtrey in dissent, this is an outrageous position. The whole point of courts is to be counter-majoritarian, i.e., to interpret the constitutional principles that constrain majorities from oppressing minorities.
However those principles play out in this case, surely the act of judicial interpretation itself is central to constitutional government, not despite being counter-majoritarian but because of it.
In the body of the opinion, the court stands on stronger ground. First, it makes a structural argument. The Sixth Circuit is bound by precedent, and, although slim, there is a one-line order issued by the Supreme Court in Baker v. Nelson (1972), holding that a gay couple’s challenge to a state marriage law did not raise “a substantial federal question.” This is a slender reed, to be sure, but it is a reed.
From there, the court rightly notes that last year’s Windsor case did not implicitly or explicitly void state marriage laws. (This was an argument I made in this publication in May, in fact.) Nor did last month’s denial of review of various marriage cases. So, Baker still stands, in all its one-sentence glory. Excluding gays from secular marriage does not raise a federal question.
This could be the end of the inquiry, but in fact, the court is just getting started.
Next, the court makes a totally different argument: constitutional originalism. The claims about democracy and precedent vanish from Judge Sutton’s opinion, which now observes that “From the founding of the Republic to 2003, every state defined marriage as a relationship between a man and a woman,” and concludes that “the Fourteenth Amendment permits, though it does not require, states to define marriage in that way.”
Wait, what? From the founding of the Republic until 1967, many states defined marriage as a relationship between two people of the same race. Does that mean that the Fourteenth Amendment permits states to define marriage in that way?
Of course not. This is why “originalism” is so beloved of cultural conservatives: All it really means is “keep the status quo.” By originalist logic, segregated classrooms, compulsory prayers in school, and bans on contraception are all magically constitutional, simply because they were present in some older time of yore. (Of course, the same logic would forbid corporations from making political donations, but originalists somehow don’t get around to that point.)
Judge Sutton doesn’t address any of these issues. It’s as if he’s throwing legal arguments at the wall, and hoping that some stick.
Next, although Judge Sutton has already let state marriage bans stand under three legal theories, he now introduces a fourth: standard of review. Arguing that only rational basis review—the most permissive standard—applies in this case, despite this being an issue specifically not decided by the Supreme Court, Judge Sutton pens a 2,300-word defense of the many rational bases for restricting marriage to straight people, complete with citations to Edmund Burke, hand-wringing about polyamory, and that old right-wing bugaboo, procreation.
Here Judge Sutton can really cut loose, offering all manner of philosophizing about the nature of the human condition, the role of the state, and, indeed, “nature’s laws.” (For some reason, Judge Sutton omits “nature’s law” that males often prefer to mate with multiple females, reflected in the biblical value of polygamy—I wonder why.) This part of the opinion will be the most joyful for conservatives, who at last have a Natural Law philosopher on the bench to set us all straight. Legally speaking, however, it is codswallop.
Judge Sutton’s fifth (!) argument is that even if some people hate gays, some people might not, and so “animus” is no reason to strike down these laws. We cannot know the minds of 8.6 million people spread across four states, particularly not when there are so many clearly non-hateful reasons to keep gays from marrying, such as the aforementioned hand-wringing about polyamory. Therefore, even if we have reliable data on the levels of anti-gay sentiment in these four states at the time of passage—data Judge Sutton does not cite—we may presume pure motives on behalf of these good people.
Believe it or not, we’re only about halfway through the DeBoer opinion, but the point is probably too clear. For the sake of completeness, I’ll summarily note Judge Sutton’s sixth argument (there is no fundamental right to marry), seventh (gay people are not a “discrete and insular” class), and eighth (marriage only evolves in meaning if majorities say it does). To be fair, these are replies to arguments put forth by the plaintiffs in the case. And anyway, it’s getting late.
Although it’s one of the strangest court opinions I’ve read in the 20 years I’ve been reading them, DeBoer will likely not be remembered much. For the reasons a dozen other courts have stated, discriminating against gay people—even if it’s in the Bible—is now widely understood to be unconstitutional. Once the Supreme Court rules on this issue, what some are calling a “significant setback” for the marriage-equality movement will probably be forgotten—even if the court rules the same way.
Ultimately, the jurisprudential tour de force that is the Sixth Circuit’s opinion is full of sound and fury, but it signifies less than it appears. It is a valiant, encyclopedic attempt of a star jurist to give voice(s) to an embattled philosophical position. You’ve got to admire the effort. But in a few years, it will likely be a footnote.