Today, the Sixth Circuit issued an omnibus opinion affirming a host of same-sex marriage bans, available at http://www.ca6.uscourts.gov/opinions.pdf/14a0275p-06.pdf.
There’s already been significant writing on the dissent (certainly fiery, a bit caustic and I think somewhat unfair to the majority), and there has also been a wave of commentary on what this opinion means for the likelihood of a SCOTUS certiorari grant. In light of Justice Ginsburg’s declaration earlier this term that they were waiting for a circuit split from the Sixth, this almost preordains review.
I wanted to focus, though, on one of the most common criticisms of the majority opinion by Judge Sutton. It’s a generally very adept opinion (though I disagree with it, narrowly), but the last paragraph isn’t great. Judge Sutton attempts a grand, big-picture wrap-up invoking democratic principles. To quote:
This case ultimately presents two ways to think about change. One is whether the Supreme Court will constitutionalize a new definition of marriage to meet new policy views about the issue. The other is whether the Court will begin to undertake a different form of change—change in the way we as a country optimize the handling of efforts to address requests for new civil liberties.
If the Court takes the first approach, it may resolve the issue for good and give the plaintiffs and many others relief. But we will never know what might have been. If the Court takes the second approach, is it not possible that the traditional arbiters of change—the people—will meet today’s challenge admirably and settle the issue in a productive way? In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.
Criticism of Judge Sutton’s opinion, at least as I’ve seen it in the early hours after the opinion dropped, has centered on the themes that appear in this paragraph. Judge Sutton alludes to the right of majorities to vote on social issues, and earlier in the opinion–as he describes possible reasons that states acted as they did under rational basis review–he raises the same themes.
It’s important to note that, as I read the opinion, these themes don’t define Judge Sutton’s reasoning doctrinally. He offers specific rebuttals to the most common arguments offered in favor of striking state bans on same-sex marriage: animus, fundamental rights, evolutionary constitutional doctrine. His pushback against equal protection is less persuasive (and that’s the ground on which these bans should probably fall). Nevertheless, the point stands that Judge Sutton nimbly engages the doctrinal arguments marshaled against him.
But criticism against the opinion so far has settled on one theme: Judge Sutton doesn’t understand judicial review. He hasn’t read Marbury, or Loving, or Lawrence–he doesn’t know that courts protect individual rights even against legislatures. There are legitimate criticisms against the opinion doctrinally: Judge Daughtrey expresses them fiercely. But I can’t help think that Judge Sutton’s last paragraph will end up serving as a socially-inverse footnote 11. Brown v. Board was vilified because Southerners hated integration, but those southerners found a singular hook in the opinion–one footnote. FN11 invoked sociological research to state (correctly) that black children suffered from attending segregated schools. But Southern critics used the footnote to paint the entire opinion as an exercise in pseudoscience. They used that footnote to undermine the whole opinion. I see this language similarly. Judge Sutton’s opinion is possibly wrong, but not for the reasons being articulated in popular culture. The inclusion of the totally superfluous last paragraph (which only tangentially relates back to one of two arguments in the rational basis section) is being deployed to invalidate the whole opinion. Until SCOTUS reviews this opinion, Judge Sutton’s language alluding to the power of popular majorities will be the footnote 11 of an otherwise reasonable–if flawed–opinion.