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Sixth Circuit Delivers Cogent Critique of Judicially-Imposed SSM
For the first time in recent years, judicial disagreement has reinvigorated the debate over the constitutional status of same-sex marriage (SSM). In this instance, all credit is due to Judge Jeffrey Sutton of the Sixth Circuit, whose opinion in DeBoer v. Snyder is notable for its moral engagement and intellectual seriousness. Judge Sutton was keenly aware of the tidal wave of support in the lower federal courts for the proposition that the Equal Protection Clause, as understood today, requires all of the states to abandon their traditional rules on marriage in order to make way for the social realities of the new age.
In choosing to swim against the tide, Judge Sutton did not dispute those rapid changes in public sentiment. Indeed, he went out of his way to welcome them, especially as they were introduced through democratic processes, whether by legislatures or by referenda. But taking a conscious leaf out of the Supreme Court’s decision in Schuette v. Coalition to Defend Affirmative Action, he resisted any effort for the courts to lead these trends when there is so much movement in the social space. If the Constitution allows for colorblind admissions into universities, it allows for prohibitions against gay marriage. In my view, Sutton makes quiet credible arguments on most of his central points. It is useful to recap some of these here.
First, Sutton urges (correctly) that the initial touchstone of constitutional interpretation be some cross between the meaning and intention of the framers of a disputed constitutional provision, which in this instance switches the locus of discourse from the present back to 1868 (when the Fourteenth Amendment was adopted). The precise species of originalism that best meets that interpretive standard is immaterial in this instance, because the constitutional recognition of SSM is inconsistent with any and all variations of the originalist position. Historically, the morals head of the police power gave the state enormous discretion over the definition of marriage and virtually all other areas of sexual behavior. Nor was there any indication that anyone at the time thought that the criminalization of SSM relations, let alone the regulation of marriage, was beyond the legislative purview.
Judge Sutton is at his most effective when he reminds readers that the “rational basis test” — which most advocates for the constitutionality of SSM rely upon — has been laxly applied in economic areas, including in the defense of statutes that allow blatant economic protectionism against equal protection challenges. That point is especially forceful for two reasons. First, the very anti-competitive conduct that is insulated from attack on either equal protection or due process grounds is roundly condemned in connection with the state regulation of interstate commerce, where explicit provisions are routinely struck down because of their protectionist impact. Second, the economic schemes that were sustained all involved new statutory innovations that went against traditional common law liberties. In contrast, every state in the United States — and every other nation — limited marriage to one man and one woman, without exception. It becomes, in the judge’s view, indefensible to reject uniform and constant practices as “irrational” based upon a serious of clever arguments that have been roundly rejected by the millions of people who supported the traditional definitions in open and fair referenda.
It is, of course, possible to demonstrate that there is no perfect fit between the statutory prohibition and its various objectives. There are gay couples that make splendid parents and straight couples who make terrible parents. But a perfect fit isn’t necessary under the rational basis framework, especially for traditional practices. Nor is it impossible to think that the differences in the ease of begetting children could make a difference in the long term on matters dealing with population growth. But much the same could said about the criminalization of polygamous relationships, which was upheld by the Supreme Court against free exercise objections in Reynolds v. United States. Yet I am not aware of any supporter of SSM that wants revisit that prohibition.
Oddly enough, the prohibition on polygamy may be less arbitrary than that on SSM, for after all polygamy involves heterosexual arrangements that have a procreative purpose and that had been recognized as valid in many societies long before the ratification of the Fourteenth Amendment. So why then is the SSM prohibition to be dismissed as arbitrary? One way to see the difficulties in this position is to note that the traditional distinction has never been reversed; no states have ever held SSM legal while banning heterosexual marriage. And they never will. Just think of the impact on the birth rate that would occur. It may well be that these counterarguments give rise to deep disquiet, especially to people like myself whose libertarian instincts are deeply suspicious of government monopolies. But the rational basis test presupposes that these libertarian views take a back seat to legislative power, so that the proper response is public outrage and legislative repeal, not judicial intervention. I hope that, in the end, this case proves no exception to the rule, so that the changes on the ground can continue apace.
It is also possible to distinguish in this context, as Judge Sutton does, the Supreme Court’s earlier and widely applauded 1967 decision in Loving v. Virginia, which struck down the prohibition against interracial marriage. Sutton’s response to this facile comparison are persuasive. Written in 1967, Loving does not contain a single hint that it challenges the traditional definition of marriage as a union between one man and one woman. Indeed, at the time it would have been bizarre for someone to make the argument that the anti-miscegenation statutes prohibited black gay and lesbian individuals from marrying white gay and lesbian individuals. Loving did not seek to invent a new definition of marriage, but to cut down a statutory prohibition on interracial marriages that were only selectively imposed by segregationist legislatures. The early and widespread acceptance on the prohibition of SSM was not born of any form of group hostility, and the decision by various groups to reinstate the norm in the face of judicial opposition should not be regarded as actuated by malice when all sorts of people of good will favored the prohibition at that time. To rule otherwise means that once any court takes the SSM genie out of the bottle, it is never possible for either legislation or referendum to put it back in.
Last, I think that Sutton was right to note that the Supreme Court in United States v. Windsor danced around the constitutional issue by holding that the definition of marriage had long been regarded as something within the exclusive province of the state. In my view, Sutton, as a Circuit Court judge, is right to treat Windsor as binding precedent, infused with its own constitutional logic. But that decision was in fact incorrect. The federalism arguments troubled no one when the Defense of Marriage Act was adopted in 1996 with strong bipartisan support. Yet there is no reason at all, especially in an age of federal dominance, that the Congress in exercise of its own powers to regulate and tax cannot adopt the definition of marriage for tax purposes, just as it adopts the definition of partnership or corporations. The entire federalism issue was a copout that worked for a particular case, but introduced a level of unprincipled unreality in constitutional discourse that is better ignored than applauded.
As was to be expected, the Sutton opinion did provoke a strong dissent by Judge Martha Craig Daughtrey, who took the position that Sutton “has drafted what would make an engrossing TED Talk, or introductory lecture in Political Philosophy.” “Advanced lecture” is probably more appropriate. What is so ironic is that any serious discussion of the Equal Protection Clause will range far and wide. Indeed, Daughtrey’s own opinion goes over expert testimony of the baleful effects of SSM prohibition on cohabiting couples that wish to be married. I think that this evidence makes a powerful brief for a legislative change — and I think that, as a legislative matter, the groundswell of public opinion toward SSM is proof-positive of its effect. But there is a real question of whether Daughtrey has addressed the “relevant” constitutional issue by ignoring the doctrinal problems that Sutton raises in favor of this fact-intensive critique. If anything, her decision had the exact opposite effect, which is to show that the legislative process that has long controlled this issue can still do so today.
No one, of course, can predict how this ongoing dispute will play out. But it is likely that the Supreme Court will be forced to take the issue unless the Sixth Circuit decides en banc to vacate this decision so that uniformity of sentiment can be restored across the land. Indeed, a clean resolution of this issue in favor of SSM should be welcomed. The hard question here is whether the means chosen in the federal courts justify the ends. Judge Sutton thought not. I agree with him.
Published in General
Professor Epstein, if the Supremes take the case as is stands and upholds it, what happens to other states where marriage laws were struck down by courts? Will the states have to pass new laws if they still want to keep marriage and not redefine it, or will laws voted on by citizens be reinstated?
Merina:
It depends. To the extent those decisions rely on the Federal 14th Amendment a SCOTUS decision which affirms Judge Sutton’s reasoning would seem to invalidate court decisions on the question, and thus free up the states to revisit the issue legislatively. It could also reinstate democratically created definitions of marriage as one man/one woman.
However, to the extent lower courts have relied on state law, a SC OTUs decisions might have little impact. Also, it would be conceivable that a state court, relying on state law, could strike down any definition that inhibits ssm.
Quite a few states have adopted state constitutional amendments defining marriage. That was the case here in CA where Prop 8 was an amendment designed to overturn a prior CA Supreme Court ruling that relied on state law.
In those cases it would seem unless our judiciary is completely corrupt (a possibility I don’t discount at this point) that courts would have no reasonable grounds to strike them down under state law. Nor could the state legislature change the definition. In CA I think the only legitimate avenue would be another ballot proposition repealing Prop 8.
I believe Joe is correct. However, public officials in California have refused to enforce Prop 8, and the Supreme Court has said that the sponsors of that initiative do not have standing to enforce it.
There may be, theoretically, a situation where a private citizen would have standing – for example, an employer who refuses to recognize a same sex marriage for purposes of some employment benefit, like California’s family leave law. However, that seems unlikely. On the other hand, if the issue came up for a popular vote today I have little doubt that SSM would pass in California. So, in the end, California will probably just ignore what the Supreme Court says until we get a conservative Republican Attorney General in the State, which is to say when hell freezes over.
I have doubt. Actually Pew has found that support for redefining marriage has receded recently.
Do you mean it’s unlikely that anyone would file such a suit, or unlikely that they would be granted standing if they did?
Professor Epstein is unaware of any supporter of SSM that wants to revisit the prohibition of polygamy. Hmm. First district court case finding such prohibition violative of equal protection in 2019? Or sooner? Looking forward to that Law Talk podcast.
Until the “rational basis test” is eliminated, judicial usurpation and confusion will never end. A law could be both discriminatory and rational at the same time. For example a prohibition on SSM is “discriminatory” in some sense, but that doesn’t mean it’s irrational. These are two different issues and what constitutes rationality is often a subjective question. If courts can throw out any law they don’t think is rational, and not just laws that violate the Constitution’s specific requirements, then courts wield veto power which they do not have.
I mean it is unlikely that anyone would invite such a suit by refusing to recognize a gay marriage. Why would an employer stick its neck out like that? The publicity would be awful.
At a minimum, Judge Sutton’s opinion should be read by all those who wish to argue civil marriage as an institution serves no societal purpose and arguments in favor of traditional marriage are inherently irrational and based in animus.
What a great opinion. Sutton makes the very case for democratic movement on the SSM issue that that Ricochetti like Tom Meyer and I have long argued for. What I like most is that Sutton declines to pass judgement on SSM itself and instead focuses on what I think is most important in American politics: process.
How we arrive at policy matters. The courts are a very poor (and unconstitutional) way of implementing policy. Sutton gets this. This is in my opinion the most important take away from this decision – not any particular victory for or against SSM – but rather a victory all conservatives can agree on: Process matters. Democracy matters. In the end, if the founders were as right as we think they were, we will grind slowly towards the right policy.
An aside – my favorite part:
Heh.
I didn’t see much of that at all. I saw a Judge focused more on the boundaries of judicial power than making an ethical judgement on the pro and anti SSM movements.
The Constitution has a “specific requirement” which provides that “nor shall any State . . . . deny to any person within its jurisdiction the equal protection of the laws.” So I don’t think just saying the courts should stick to the specific requirements set forth in the Constitution really gets you there. You need some theory about how to apply that language. It is a commonplace that laws discriminate. They would be useless if they didn’t. And yet the Constitution very clearly guarantees each citizen “equal protection of the laws.” Courts are left with little choice but to square that circle somehow. We can quibble with how equal protection jurisprudence has developed. But we don’t get anywhere by pretending we can have no equal protection jurisprudence.
I haven’t seen any Ricochetti on the pro-SSM side argue that the arguments against SSM are inherently irrational. Some arguments just happen to be irrational, which opens the door to the deduction that they are a pretext for animus. That is a well-established principle in discrimination law.
Klaatu has always refused to understand our objections, or at least my objections, to making public policy based on a notion as vague as “societal purpose.” Any assertion of a “societal purpose” represents nothing but the personal prejudices and predilections of the speaker. Marriage, like every institution, serves many purposes. No individual’s assertion that they know the one and only purpose of marriage that is entitled to be promoted to the status of “societal purpose” is entitled to one whit more deference than any other individual’s opinion.
As bad as it is when judges legislate based on concepts like equal protection, it would be even worse if judges were to appoint themselves as the arbiters of “societal purpose” and re-interpret laws based on whatever they think is good for society. Some judges do that already, unfortunately, but legitimizing any judicial analysis based on “societal purpose” would guarantee the end of the democratic process.
Excellent points, Prof. Thanks for pointing out that there was nothing introductory about Sutton’s opinion. I felt that was a childish jab.
The discussion in the comments is depressing. Everyone seems to (rightly) believe that California will ignore a plainly worded provision in its own constitution if the Sixth Circuit is affirmed. I think that just goes to show that much of the gay marriage crowd really does not care about the law here. They just want what they want, by any means necessary.
Not so. I would much prefer that SSM be adopted by popular initiative. I want SSM to be legitimized, but I want it to be legitimized legitimately.
Cato, at aminimum we could say that equal protection dictates how laws should be applied, not what they should or should not say. The clause was meant to reign in abuse by the executive power within the states, not to require laws to be non-discriminatory. If a sheriff isn’t enforcing laws against murder when people he doesn’t like are being killed, that’s a violation of equal protection. So with the exception of a law that actually required such an abuse of power by the executive, we can safely conclude that no law, no matter what it says, can be held to violate the equal protection clause.
Larry, i believe you, but those in charge of the democratic party in California would not follow the law. They might seek a constitutional amendment, but I doubt they’d stop issuing marriage licenses to gays before it was enacted.
As for your point about societal purpose, you’re wrong as a legal proposition. Under rational basis review, the court must affirm the law if ANY reason supporting the law, no matter its origin, is rational.
I appreciate your point, but there is a huge difference between the rational basis test (which you describe correctly) and the “societal purpose” argument advance by SSM opponents. As you say, a rational basis means any basis grounded in reason (other than an illegal basis such as discriminating against a disfavored class of people). The “societal purpose” argument advanced by SSM opponents claims that: (1) there is one, and only one, “societal purpose” for the institution of marriage, (2) whatever other purposes marriage may serve, those purposes do not merit being recognized by society, because they are not the “societal purpose,” and (3) that the law must be interpreted to carry out the “societal purpose” as the sole purpose of marriage. And the only way to determine the “societal purpose” is based on the ipse dixit say-so of the people making that argument. How much would you like to see judges reasoning in that fashion? No thanks.
From the opinion (emphasis mine):
Judge Sutton also dedicated 3+ pages to countering the animus claim.
You have made the claim repeatedly. Every civil institution exists to serve a societal purpose, the idea that they do not is absurd on its face.
You simply refuse to acknowledge the role marriage has played in society for centuries. Judge Sutton recognized this societal purpose when he wrote;
One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.
No one wants judges to be the arbiters of societal interest, that is what we vote and elect representatives for.
No one is arguing that traditional marriage is required by the constitution. In other words, the legal argument is not that traditional marriage is the only rational way to organize our affairs. It’s just that traditional marriage is one of the rational ways to do things. In the policy debate, you may have a fine point, but in the legal realm, I don’t think so.
I agree that I am responding to a policy argument; not a legal argument. I do not believe that the Constitution requires SSM to be recognized by the states. Although I have to be honest – the more I read the arguments of SSM opponents, the less rational those arguments seem to me. Still, the rational basis test has been used to uphold so many utterly irrational laws (especially under the Commerce Clause) that I cannot see it being legitimately used to force SSM on states that are not yet ready to accept it.
Because you refuse (despite overwhelming evidence) to accept that marriage exists as a civil/legal institution to serve a societal purpose.
As Klaatu said, we’re all in agreement that judges should not be determining social purpose of marriage. That is for the voters to decide, either directly or via their elected representatives.
You just need to find one, and it could be a small business owner, a non-profit foundation, or a religious institution. Though they may be less likely to have openly gay employees in the first place.
I know, because the male/female distinction is just, like, so arbitrary.
Von Mises on natural social institutions:
“When, going beyond this, [feminism] attacks the institutions of social life under the impression that it will thus be able to remove the natural barriers, it is a spiritual child of Socialism. For it is a characteristic of Socialism to discover in social institutions the origin of unalterable facts of nature, and to endeavor, by reforming these institutions, to reform nature.”
I would go a bit further to say this:
ANY movement that attacks the institutions of social life under the impression that it will thus be able to remove the natural barriers, is a spiritual child of Socialism. It is a characteristic of SSM to reform marriage by reforming nature, by employing the power of the state to enforce the idea that men and women are interchangeable and that biological sex differences should be supressed. SSM is an excellent example of what von Mises was talking about.
Oh for the love of Pete, Jennifer, Von Mises was not making an argument about SSM. STOP MISREPRSSENTING THE ARGUMENT.