Let us now praise famous men, or at least one good federal judge, as some recent work of his demonstrates. Jeffrey Sutton is this judge, and he sits on the U.S. Court of Appeals for the Sixth Circuit, which includes the states of Michigan, Ohio, Kentucky, and Tennessee. Earlier this month he announced an opinion for his court in DeBoer v. Snyder (and three similar cases), in which he answered in the negative the question that continues to stir the body politic—whether the Constitution prohibits a state from defining marriage as a relationship between a man and a woman.
The Sixth Circuit is now the first federal appeals court to hold that the Constitution does not so forbid a state. Four other appeals courts—the Fourth, Seventh, Ninth, and Tenth—have reached the opposite conclusion. The circuits thus are “split” on the question, a development that makes it more likely that the Supreme Court will accept for review one or more of the Sixth Circuit cases, with arguments next spring and a decision in June.
Sutton’s opinion deserves commendation on several grounds, starting with its criticism of the four circuits that have decided on same-sex marriage, in particular their treatment of Supreme Court precedent.
More than 40 years ago, a same-sex couple in Minnesota sued the state for violating the Constitution when it denied the couple’s request for a marriage license. The couple lost in the Minnesota courts, and the Supreme Court declined to review the case, issuing a one-line order in Baker v. Nelson in 1972 stating that the appeal did not raise “a substantial federal question.”
The four circuits that have constitutionalized same-sex marriage did not regard Baker as the stop sign they should have seen it as. After all, as Sutton pointed out, lower court judges are obligated to follow High Court precedent, only the Supreme Court may overrule its own cases, and nothing the Court has done since Baker has overruled it, whether explicitly or by implication.
Wrote Sutton: Circuit judges “remain bound even by [the Court’s] summary decisions ‘until such time as the Court informs [us] that [we] are not.’ The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.”
Sutton also reviewed thoroughly the rationales that have been offered for recognizing a constitutional right to same-sex marriage—among them original meaning, rational basis review, animus (toward gays), fundamental rights, suspect classifications, and “evolving meaning”—and he found each of them lacking. Commenting further on the four circuits that wrongly assumed the authority to decide the same-sex marriage question, he observed: “They agree on one thing: the result. But they reach that outcome in many ways, often more than one way in the same decision,” failing to provide a compelling explanation as to why the people must be denied “suffrage over an issue long thought to be within their power”—since, indeed, “the founding of the Republic.”
Here we see another reason to praise Sutton’s opinion: The judge framed his treatment of the Baker case and the various rationales for constitutionalizing same-sex marriage in terms of what the issue is ultimately about—“change and how best to handle it” under the Constitution.
“Since 2003, nineteen states and the District of Columbia have expanded the definition of marriage to include gay couples,” Sutton noted, even as the aforementioned federal courts of appeals “have compelled several other states to permit same-sex marriage under the Fourteenth Amendment.” What remains “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 by requiring all states in the circuit to extend the definition of marriage to encompass gay couples.” In sum, “Who decides? Is this a matter that the national Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?”
That, of course, is the question now headed to the Supreme Court, the resolution of which would affect not only the four states in the Sixth Circuit but all 50 in the union. And how might the Court see the issue?