Today's ruling by the U.S. Court of Appeals for the Sixth Circuit rejecting a constitutional right to same-sex marriage makes it nearly certain that the SCOTUS will finally have to grant cert in a SSM case. The Sixth Circuit has a majority of Republican appointees, and while that's no guarantee that an en banc petition would be futile, I would expect the plaintiffs to seek certiorari rather than first seeking en banc review. (I don't know whether the 6th Circuit ever goes en banc sua sponte but I'll assume that's very unlikely.) Having been burned before, I won't predict with a hundred percent confidence that the SCOTUS (eventually) takes the case, but that's certainly the way to bet.
Here now three quick reactions to the Sixth Circuit opinion:
1) My main reaction is to note that the tone of Judge Sutton's majority opinion is almost elegiac, more in sorrow than in anger. But there's a mixed signal in there. He's not sad because he thinks there ought to be a right to SSM that the case law won't allow. In other words, he does not appear to be saying "I wish I could recognize a right to SSM but the precedents don't allow it." Rather, he seems to be saying something like "this is an issue for the political process, not for me as a judge, and I sure wish people would understand that in rejecting the claimed right to SSM, I'm not a bigot."
2) I know Judge Sutton a bit from long ago when we were both law clerks and I think that's surely right. He's not a bigot. And to his credit, his opinion expressly recognizes and condemns anti-gay prejudice. But, to quote Justice Scalia's (increasingly embarrassing) dissent in Romer v. Evans, Judge Sutton ultimately "takes sides in the culture wars." To my mind, the most arresting language in his majority opinion comes at the end of his rejection of the argument that the challenged bans on SSM are the product of impermissible animus. He writes:
Some equanimity is in order in assessing the motives of voters who invoked a constitutionally respected vehicle for change and for resistance to change: direct democracy. Just as gay individuals are no longer abstractions, neither should we treat States as abstractions. Behind these initiatives were real people who teach our children, create our jobs, and defend our shores. Some of these people supported the initiative in 2004; some did not. It is no less unfair to paint the proponents of the measures as a monolithic group of hate-mongers than it is to paint the opponents as a monolithic group trying to undo American families. “Tolerance,” like respect and dignity, is best traveled on a “two-way street.” If there is a dominant theme to the Court’s cases in this area, it is to end otherness, not to create new others.[citations omitted].
Put differently, Judge Sutton roughly equates the tacit reproach that might be felt by people who voted for the SSM bans (even though many of them now favor legal SSM) if a court invalidates those bans based on the "animus" theory, with the very real insults to dignity and deprivation of concrete benefits suffered by the same-sex couples denied the right to marry. This claim that it is intolerant to demand that minorities not be treated unequally resonates strongly with the claims one hears by members of the Christian majority that religious minorities who seek equal status for their faith (or lack of faith) are oppressing the majority. It is "War on Christmas" rhetoric. Although the majority opinion mostly speaks the language of judicial restraint in light of the countermajoritarian difficulty, in the passage above the mask slips, as it were, and cultural ressentiment shines through.
3) There is much in Judge Sutton's opinion that, while highly debatable, is nonetheless respectable legal argument--the sort of thing any competent lawyer might say without raising any eyebrows in other contexts. E.g., while I disagree with Judge Sutton's treatment of the SCOTUS per curiam non-opinion in Baker v. Nelson, I would certainly make the most of that sort of a case if I had one on my side in a case involving, say, the dormant Commerce Clause.
The opinion is, in my view, at its weakest, in its discussion of the relation of animus and federalism in U.S. v. Windsor. Judge Sutton explains that the SCOTUS in Windsor invoked the states' traditional role in defining the marriage relation not to say that Congress can't define marriage for purposes of a federal statute; it clearly can. Instead, he correctly notes that the traditional role of the states in defining marriage makes the federal redefinition in DOMA Section 3 suspicious. So far so good. But then look where he goes. In Windsor, he says, the Court
resolves the case on the narrower Romer ground—that anomalous exercises of power targeting a single group raise suspicion that bigotry rather than legitimate policy is afoot. Why was DOMA anomalous? Only federalism can supply the answer. The national statute trespassed upon New York’s time-respected authority to define the marital relation, including by “enhanc[ing] the recognition, dignity, and protection” of gay and lesbian couples. Id. Today’s case involves no such “divest[ing]”/ “depriv[ing]”/ “undermin[ing]” of a marriage status granted through a State’s authority over domestic relations within its borders and thus provides no basis for inferring that the purpose of the state law was to “impose a disadvantage”/“a separate status”/“a stigma” on gay couples.But federalism surely cannot supply the answer. I can show what's wrong with the foregoing analysis with a hypothetical example. Suppose a federal statute that defined property relations across a range of issues by a federal definition, rather than by following the usual practice, whereby federal law piggybacks on state definitions of property. Such a departure might well raise suspicions, but would anybody say that the federal statute was rooted in animus on the ground that it deprived state citizens of the "dignity" of a state rather than a federal definition of property? The very idea is ludicrous.
What made DOMA a deprivation of dignity was not that it substituted a federal for a state definition of some legal status on a subject traditionally within the primary regulatory competence of the states. It was the fact that Justice Kennedy and the majority properly understood that depriving same-sex couples of the tangible and intangible benefits of marriage based on their sexual orientation was animus--not in the sense of hatred, which has never been required, but in the sense of unwarranted prejudice.
Put differently, Justice Scalia was right in his Windsor dissent in seeing the majority opinion as entailing a next step of invalidating state laws banning SSM. And CJ Roberts was engaging in damage control in his Windsor dissent in trying to characterize the majority as a federalism decision. The federalism reading of Windsor is open to the lower courts as a technical matter, but one has to come at the case with a predisposition to rule against a right to SSM in order to find it persuasive.