A three-judge panel of the U.S. Court of Appeals for the 6th Circuit voted 2-1 to reverse marriage equality decisions from Michigan, Ohio, Kentucky and Tennessee on November 6, creating a split of circuit authority that appeared calculated to provoke Supreme Court review just one month after the High Court had turned down petitions from five states in three circuits, effectively allowing marriage equality decisions to take effect in those states. The opinion for the majority in DeBoer v. Snyder, 2014 U.S. App. LEXIS 21191, 2014 Westlaw 5748990, by Circuit Judge Jeffrey Sutton framed the issue as “who should decide” whether same-sex couples have a right to marry, judges or the voters (either directly through referenda or indirectly through their elected legislators)? He concluded that this was a policy decision best made through “democracy” rather than adjudication, thus parting company from his colleagues in the 4th, 7th, 9th and 10th Circuits.
Although Sutton’s decision was long — 35 pages in the court’s slip opinion — much of it could be characterized as merely “dicta” — unnecessary ruminations — because at the outset he asserted that the court was bound by the Supreme Court’s ruling in Baker v. Nelson, 409 U.S. 810 (1972), an appeal from a Minnesota Supreme Court decision denying a gay couple’s marriage claim for lack of a “substantial federal question.” In those days, the Supreme Court was obliged by federal statutes to issue a ruling on the merits in any appeal from a state court decision concerning the constitutionality of a statute. Because of the sheer volume of such cases, the Court frequently summarily affirmed the lower court without holding oral arguments or receiving full briefing from the parties, stating that the case did not present a “substantial federal question.” Under the circumstances, such rulings are considered binding precedents on lower courts as to their judgments, but lacking a written opinion from the Court, the grounds of the decision are open to speculation.
“It matters not whether we think the decision was right in its time, remains right today, or will be followed by the Court in the future. Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions ‘until such time as the Court informs us that we are not,'” wrote Sutton, referring to a later Supreme Court ruling explaining the precedential status of such summary dispositions, Hicks v. Miranda, 422 U.S. 332 (1975). This was a selective quotation from Hicks, however, as each of the other circuit courts has found a basis in other statements in Hicks and later Supreme Court opinions suggesting that if later Supreme Court rulings make it clear that the earlier case would now present a substantial federal question, the old summary affirmance is no longer binding.
Sutton explained why he concluded that the 2013 DOMA ruling, U.S. v. Windsor, 133 S. Ct. 2675 (2013), did not overrule Baker v. Nelson. Justice Anthony Kennedy’s opinion for the Court did not mention Baker, and expressly disclaimed ruling on whether same-sex couples are entitled to marry. Although Justice Kennedy wrote that the basis for the Court’s ruling was the 5th Amendment’s Due Process and Equal Protection requirements, expressly disclaiming reliance on federalism to reach its result, Chief Justice John Roberts’ dissenting opinion characterized the case as being about “federalism” — the division of authority between state and federal governments — and Sutton reiterated that contention, arguing that the Windsor ruling leaves Baker v. Nelson untouched because it says nothing directly about whether same-sex couples are entitled under the 14th Amendment to marry.
If that is the case, then there was no reason for Sutton to keep writing. He could have ended his opinion right there, without addressing the due process and equal protection arguments made by the plaintiffs in these cases, but he plunged ahead, rejecting the analyses of all the prior circuit court decisions as well as dozens of district court opinions (including the six opinions being reviewed in this case). “A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States,” he insisted, and went on to adopt the theory presented by the states that marriage as an institution was created to channel the procreative activities of heterosexual couples into a stable institution for raising their children. While he conceded that views of marriage have evolved, and that there could be strong policy arguments for extending the right to marry to same-sex couples today, he said that this “does not show that the States, circa 2014, suddenly must look at this policy issue in just one way on pain of violating the Constitution.” This is, of course, in line with his general philosophy concerning the respective role of legislatures and courts in making public policy decisions, and it channels the arguments made by Justice Samuel Alito in his dissenting opinion in U.S. v. Windsor.
Understanding Sutton’s opinion requires understanding his judicial philosophy. Sutton was appointed to the 6th Circuit by George W. Bush. He was among Bush’s earliest appointments, and his very conservative reputation, earned from his law review articles and his service as Ohio State Solicitor, caused a substantial delay in his confirmation. The Democrats briefly controlled the Senate at the beginning of Bush’s first term, and they refused to vote on the Sutton nomination. After Republicans gained a majority in the Senate, Bush re-nominated Sutton and he was finally confirmed two years after his initial nomination. After graduation from law school at Ohio State, Sutton had clerked at the Supreme Court for Justices Antonin Scalia and Lewis Powell. His views on judging seem to be closely in sync with Scalia’s articulated positions.
Sutton lines up with those who say that constitutional provisions should be held to mean what their framers intended them to mean, based upon what they would have been taken to mean by the public at the time they were ratified. Viewed from this perspective, the 14th Amendment, adopted in 1868, was intended to assure that the recently freed black slaves would be accorded the same legal status by the states as all other citizens. Also viewed from this perspective, the function of the due process clause was to guarantee procedural fairness in administering the laws. Adherents to this view of constitutional interpretation generally dispute the theory of “substantive due process” under which courts invalidate laws as impairing fundamental rights without sufficient justification. They also long argued that the equal protection clause was intended solely to ban race discrimination, given the context of its adoption. Even Justice Scalia seems to have backed away from this extreme view of the limits of equal protection, now describing himself as an “imperfect” originalist, but he has referred from time to time to the “discredited” theory of “substantive due process.”
At the same time, Sutton also proclaims, as does Scalia, that courts must be very deferential to the legislatures and the voters in matters of deciding public policy, that they must accord a strong presumption of constitutionality to policies made through the democratic process, and that they should only strike down state constitutional provisions and statutes in extreme cases where they directly contradict express constitutional provisions. Such judges are fond of pointing out that the constitution does not mention marriage, and they consider the argument that there is a constitutionally protected fundamental right to marry as illegitimate.
Together with this, as Sutton points out, prior decisions by the 6th Circuit have rejected the contention that sexual orientation is a “suspect classification” or that laws discriminating against gay people are subject to heightened or strict scrutiny, so this 6th Circuit panel was bound in his view to uphold the state marriage bans if any rational basis for them could be hypothesized.
Given this background of judicial philosophy and 6th Circuit precedent, together with his rejection of the argument that U.S. v. Windsor had any direct application to this case, his conclusion that the marriage bans are constitutional was not very surprising. Indeed, anybody listening to the oral argument held by the court exactly three months earlier would have to conclude that Sutton was very skeptical about the argument that the bans were unconstitutional. This result from the 6th Circuit was widely anticipated, even by Supreme Court Justice Ruth Bader Ginsburg, whose public remarks before the start of the Supreme Court’s term sent a clear signal that the Court felt no rush to take a same-sex marriage case, but that this could be changed by the decision that was forthcoming from the 6th Circuit.
Dissenting Judge Martha Craig Daughtrey, a senior judge who was appointed to the 6th Circuit by Bill Clinton early in his first term, chided Sutton at the outset of her opinion. “The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,” she wrote. “But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise — that the question before us is ‘who should decide?” — and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for ‘proceeding with caution’ (otherwise known as the ‘wait and see’ approach), I dissent.”
Daughtrey’s dissent incorporated parts of the other circuit court decisions, with particular emphasis on Judge Richard Posner’s opinion for the 7th Circuit and Judge Marsha Berzon’s concurring opinion in the 9th Circuit, rejecting the continuing precedential salience of Baker v. Nelson (which she describes as a “prime candidate” for being treated as a “dead letter”) and finding the states’ justifications for their marriage bans unavailing even under the least demanding rational basis scrutiny. Thus, prior 6th Circuit cases commanding that rational basis review apply in sexual orientation cases presented no barrier to her conclusion, because she found that the state arguments failed to meet the rational basis test.
Clearly, this decision by the 6th Circuit panel is merely a way-station on the route to a final constitutional determination in a higher tribunal, and Sutton’s opinion at times reflects his understanding that his view is out of step with the trend of federal decisions and may well fall to Supreme Court review. Daughtrey suggested a possible ulterior motive on the part of the majority. After reviewing the trial record in the Michigan case and the reasoning of the opinions from the other circuits, she wrote, “These four cases from our sister circuits provide a rich mine of responses to every rationale raised by the defendants in the Sixth Circuit cases as a basis for excluding same-sex couples from contracting valid marriages. Indeed, it would seem unnecessary for this court to do more than cite those cases in affirming the district courts’ decisions in the six cases now before us. Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and put an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens.”
Lawyers for the plaintiffs in the six cases conferred by telephone conference on November 7 about the strategy going forward. Since ten out of the fifteen active judges on the 6th Circuit were appointed by Republican presidents, including a large number by George W. Bush, with only two appointees by Barack Obama and three by Bill Clinton, a motion for rehearing en banc seemed a pointless, time-wasting gesture, so the most likely path forward would be the filing of six petitions for certiorari with the U.S. Supreme Court at the earliest possible date, and the attorneys quickly reached a consensus on this point. None of them would be filing motions for rehearing en banc. Judging by how things have played out in recent Supreme Court terms, it appeared possible that if such petitions were filed promptly, one or more of these cases could end up on the Supreme Court’s active docket for decision during the current term, which ends in June 2015. The best candidate for such review would probably by the Michigan decision, the only one decided after a trial affording a full factual record as opposed to the other cases that were decided on motions for summary judgment.