Some arguments just have to be made, and made well. In the case of the United States Court of Appeals for the Sixth Circuit, the moment for such an argument arrived last week when that court had to rule on appeals over the question of same-sex marriage coming from the four states in its federal jurisdiction, Michigan, Ohio, Kentucky, and Tennessee. In each case, Federal District Courts had struck down measures banning same-sex marriage. Now, the question loomed before the three judge panel of the Sixth Circuit.
Until last week, no federal appeals court had ruled against same-sex marriage in the aftermath of the U.S. Supreme Court’s 2013 Windsor decision striking down the federal government’s Defense of Marriage Act [DOMA]. That changed when the panel of the Sixth Circuit, in a 2-1 decision, affirmed the measure limiting marriage to one man and one woman in the four covered states. The decision sent shock waves throughout the nation.
The panel had indicated its impatience with arguments put forth by proponents of same-sex marriage when the case was heard months ago, but the decision came even after the Supreme Court on October 6 had refused to accept an appeal from states that had seen their defense of natural marriage go down to court challenges. The nation was watching for the decision from the Sixth Circuit, and when the decision came down at the end of last week, the ruling instantly became headline news.
But, important as the decision was in itself, the larger event was the opinion released for the majority by Judge Jeffrey S. Sutton. Judge Sutton is known for his eloquent prose and forceful argumentation. The opinion released last Thursday was a blockbuster in terms of forceful argument. Judge Sutton’s opinion is a triumph of constitutional argument and the defense of common sense. It is a masterpiece of logic and a compelling argument for the rule of law.
Even though Judge Sutton knew that the U.S. Supreme Court appears to be determined to legalize same-sex marriage, his responsibility, with the other judges on the panel, was to decide the cases in light of the U.S. Constitution and the rule of law. Once the decision was made, it was Judge Sutton’s responsibility to write the opinion, and he did.
He began by noting the speed of the moral revolution that has produced same-sex marriage in many U.S. states, mostly by judicial action. “From the vantage point of 2014,” he wrote, “it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen. That would not have seemed likely as recently as a dozen years ago.”
He continued: “For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world.”
The first major argument presented by Judge Sutton had to do with the fact that the issue is now being decided in the courts. He clearly rejected the idea that a handful of judges should “make such a vital policy call for the thirty-two million citizens” who reside within the Sixth Circuit. That is a rare and refreshing statement of judicial humility. Furthermore, Judge Sutton cited the decision of the Supreme Court in 1972 to refuse to take a case about same-sex marriage from Minnesota, stating that the issue did not raise “a substantial federal question.” The Supreme Court may revisit that judgment, Judge Sutton noted, but it has not. Until then, he advised, lower courts are to be confined by that decision.
Windsor, Judge Sutton argued, did not address that decision [Baker v. Nelson], and thus the judgment of the Court stands. As he noted, this has not prevented other federal courts from ignoring the precedent. Some of those other courts cited “doctrinal developments” in making their decisions to strike down state provisions limiting marriage to a man and a woman, but Judge Sutton advised that such a reading of “doctrinal developments” apart from a clear Supreme Court ruling would be “a groundbreaking development on its own.”
In making his second major point, Judge Sutton argued that the original intention of the framers of the Constitution’s language would support the claim that the states have the right to define marriage as the union of a man and a woman. “Nobody in this case,” he argued, “argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.”
Furthermore, he argued, the Supreme Court ruled just last year by making the same logical argument. In the case Town of Greece v Galloway, the Supreme Court held that Greece, New York was acting within constitutional bounds when it began its town council meetings with prayer. The Court ruled that the framers of the Constitution would not have understood themselves to violate the Constitution when they opened their own sessions with prayer, as both the House of Representatives and the Senate do even today. Similarly, Judge Sutton ruled that the framers of the Fourteenth Amendment clearly did not see that language as requiring states to legalize same-sex marriage.
Then came the third argument presented by Judge Sutton — and it is cased within one of the most important sentences written by any judge in recent times: “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.”
That is a stunning sentence . . . stunning in the larger sense simply because it is so breathtakingly clear and honest.
In his fourth argument, Judge Sutton argued that the biological basis of natural marriage, based in the complementarian nature of the male-female union, is a natural and lawful concern of the state. The state is within its proper domain in defining and limiting marriage to the uniquely procreative union of a man and a woman. A society has the right, he stated, to establish ground rules for marriage “and most especially a need to create stable family units for the planned and unplanned creation of children.”
Then came this strategic paragraph:
“What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g. with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. This does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. This explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.”
In his fifth argument, Judge Sutton asked why marriage is still to be defined in terms of monogamy. “If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage,” he stated. He also recorded that in the oral arguments the attorneys arguing for same-sex marriage had been unable to answer his question. They could not, he stated, because the only argument they could advance was moral tradition. They could not cite moral tradition as the authority for monogamy because they argued that moral tradition was not a rational basis for law when it came to limiting marriage to a man-woman union. Judge Sutton also noted that the Supreme Court has not defined any “fundamental right” for same-sex couples to marry.
Finally, Judge Sutton delivered a major blow for legal sanity when he directly addressed the argument that judges should interpret the Constitution as a “living” document, recognizing the evolution of moral judgment in the larger society. As Judge Sutton argued, and argued eloquently, if society is really evolving on this issue (as he conceded that it is), then the advocates of same-sex marriage should allow the democratic process to work. If morality is really evolving, then the matter will be settled democratically on the basis of the new morality. The only justification for going to the courts to deal with the issue is a lack of confidence that the society is actually evolving on the question. Furthermore, Judge Sutton argued, the “living constitution” arguments really rest on the evolving judgments of judges, not of the people. “The theory of the living constitution,” he asserted, “rests on the premise that every generation has the right to govern itself. If that premise prevents judges from insisting on principles that society has moved past, so too should it prevent judges from anticipating principles that society has yet to embrace.”
Once again, a refreshing statement of judicial candor and humble clarification.
Then, Judge Sutton offered an even more powerful assertion: “If, before a new consensus has emerged on a social issue, federal judges may decide when the time is ripe to recognize a new constitutional right, surely the people should receive some deference in deciding when the time is ripe to move from one picture of marriage to another.”
The ruling by the panel of the Sixth Circuit means that the question of same-sex marriage will almost certainly arrive again at the Supreme Court, and in short order. As Judge Sutton indicated in the opening section to his opinion, he fully expects the Supreme Court to rule in favor of same-sex marriage. In his opinion, he made clear that this would be a mistake and a violation of the Court’s own logic. More importantly, Judge Sutton made clear that he believes that any straightforward reading of the Constitution in terms of its original meaning would allow the states to regulate marriage and to protect natural marriage as the central organizing principle of human society.
Judges who have ruled against state measures limiting marriage to a man and a woman have acted recklessly, as Judge Sutton’s powerful opinion demonstrates, imperiling both the rule of law and the institution of marriage.
These judges, Judge Sutton reveals, have substituted their own moral judgment for the rule of law. Some years ago, the late Supreme Court Justice Thurgood Marshall told a group of his clerks that this was precisely his legal philosophy. “You do what you think is right and let the law catch up,” Justice Marshall advised.
That is not a statement that honors the rule of law. It is a statement of judicial imposition. Judge Sutton’s opinion represents a very different philosophy of law, and one that will stand the test of time, even if it does not stand the test of appeal.
Sometimes the right argument just has to be made, even if it does not win at any given hour. The truth will stand the test of time, and Judge Sutton deserves our gratitude and respect for making an argument in defense of both marriage and the Constitution — and for making it so well.
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Publication date: November 11, 2014