DeBoer v. Snyder, No. 14-1341, is one of six cases, consolidated on appeal to the 6th Circuit Court of Appeals, addressing same sex marriage. In a 2-1 decision on November 6, the 6th Circuit became the first circuit court which refused to permit same sex marriage in the aftermath of Windsor v. United States.
The majority opinion was written by Judge Jeffrey Sutton, a well-known conservative judge from Ohio. The case is about process, Judge Sutton tells us. His second sentence reads: “From the vantage point of 2014, 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.”
Judge Sutton asserts that a poll of the three-judge panel cannot decide “whether gay marriage is a good idea.” Right, but no one has suggested such a poll. So what is the real issue? Does providing a plethora of governmental benefits to married couples—who can only be a man and a woman—violate the equal protection rights of same sex couples? There are other legal theories—a fundamental right to marry, for example—but equal protection is the sound and simple approach. (As an aside, Edith Windsor and her attorneys smartly brought a case based on money. By what right does government pass out goodies to married people, and tell same sex couples “Nothing for you; tough luck?”)
So what does Judge Sutton do? He distinguishes Windsor, noting that its subject was the Defense of Marriage Act (DOMA), not a state law. In doing so, however, he ignores the rationale underlying Windsor, to wit: DOMA violated the 5th Amendment’s implied right to equal protection, which means state laws banning same sex marriage violate the 14th Amendment’s equal protection clause.
Then, Judge Sutton relies on an early 1970s Minnesota case, Baker v. Nelson. A male couple tried to marry. Thwarted in state court, they appealed to the U.S. Supreme Court. It rejected the appeal in one sentence, noting the absence of a substantial federal question. Per Judge Sutton, because Windsor did not mention Baker, it’s the law of the land for now.
Finally, Judge Sutton addresses the Supreme Court’s failure to review the several circuit court decisions. (The denial of certiorari came on October 6, just six weeks ago, long after oral argument in DeBoer.) Unimpressed, Judge Sutton writes that the various circuit courts, as well as the District Court judges whose decisions are before him, have relied on several theories, among them the fundamental right to marry, that existing laws do/don’t have a rational basis, that there is animus, and that same sex couples fall within a suspect classification. (These are shorthand references to analytical tools used by courts to evaluate the constitutionality of laws under the equal protection clause. Space doesn’t allow me to analyze the issues further. Read the majority opinion and the dissent.) The absence of a clear and consistent basis for ruling in favor of same sex marriage tells Judge Sutton he is on terra firma. (As I read the majority opinion I recalled from law school that a judge can fit almost any law inside a particular tool’s ambit. Want to uphold a law? The lawmakers—the legislature or the people—had a rational basis for making the law. Want to toss it? There’s a fundamental right at stake.)
To his credit Judge Sutton offers no bombast or offense. He writes respectfully about a class of people, explaining in a result-oriented opinion why living in Michigan, Ohio, Kentucky, and Tennessee means same sex couples can’t marry right now. Conservatism with a smile, and no Justice Antonin Scalia! Dangerous!!!
Then there’s the dissent, written by Judge Martha Daughtrey. First words:
The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. 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.
Judge Daughtrey delves deeply into the record, focusing heavily on the positive impacts of marriage on children. (Same sex marriage proponents have won the fight, in court at least, about whether children with same sex parents are better off when they are married.) At the outset she observes:
Readers … must have said at various points in the majority opinion, “But what about the children?” I did, and I could not find the answer in the opinion.
Only late in the opinion does Judge Daughtrey devote any space to a direct rebuttal. It’s short, civil, and merciless (and, in the spirit of November, she slices and dices Baker v. Nelson into pieces smaller than the mincemeat you’d find in my favorite holiday pie.)
Both Judge Sutton and Judge Daughtrey are likely writing for Justice Anthony Kennedy. He’s written the key opinions—Romer v. Evans, Lawrence v. Texas, and Windsor—which address same sex issues, but he is also a state’s rights advocate. Lots of nuance here, and while most of the justices’ positions are pretty clear, Justice Kennedy’s may not be. Time will tell; stay tuned!
P.S. Thanks to Barbara Atwood, friend, law professor, and persona awesomus (awesome person) for her help with this post. Mistakes are mine, of course, and she did not see the final draft.