Thursday, November 06, 2014

What's Wrong With the Sixth Circuit Ruling Against A Constitutional Right to SSM

by Michael Dorf

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.


KC Johnson said...

The heart of Sutton's argument is that this issue can only be addressed through plebiscites--where anti-gay prejudice is not only a legitimate argument, but where it frequently was employed in the referenda campaigns. The courts, where this sort of argument can't be raised, are off limits. (Does he think Romer and Lawrence were wrongly decided, too?)

So regardless of whether Judge Sutton is personally prejudiced, at the least he seems to see anti-gay prejudice as a legitimate justification for policy, if one that he might not use himself.

Asher said...

I don't know if you're quite fair to his reading of Windsor. You're right, of course, that federal legislation on some matter within state competence doesn't, by itself, signal animus. But it doesn't follow that DOMA's being anomalous in that respect is irrelevant to the Court's finding animus, or unnecessary to its finding animus. There's a defensible reading of Windsor under which both DOMA's content and federalism were necessary to the Court's animus holding. I'll show how with the following hypothetical.

Suppose a state bans marriages between two people above 70, on the ground that it has no need to formalize these non-procreative unions. Constitutionally problematic - sure, but perhaps defensible at least on equal protection grounds. Now, suppose Congress passes a law just like DOMA, but for marriages where both spouses are above 70. Such a law would look a lot more suspect than a state's septuagenarian marriage ban, because Congress, unlike the state, wouldn't be merely declining to create marriages it sees no purpose for, but rather, declining to recognize existing marriages. At the least, one defense available to the state isn't available to Congress, which may, by process of elimination, leave a reviewing court to conclude Congress was motivated by animus.

Mr. Grumpypants said...

You can be as technical as you want. Sutton's failure to recognize an equal protection right to same sex marriage is a disgrace to the federal judiciary.

Nathaniel Mcdougal said...

What I find most troubling are the logical inconsistencies within Sutton's opinion.

First, Sutton goes to great lengths to talk about how marriage is a long standing and vitally important interest to American citizens. Yet, he meanders through historic hypothetical "what-ifs" regarding case law on the fundamental right to marry, and to no one's surprise, he finds that his assumptions and answers to those "what-ifs" completely validate his position. That position being that he simply cannot bring himself to fully acknowledge the fundamental right to marry, but if he were so inclined, he could only affirm a fundamental right to heterosexual marriage. So, a long standing, traditional right that has been recognized throughout our nation's history does not qualify as a fundamental right, and even if it does, that fundamental right cannot be enjoyed by all citizens because Loving didn't say it was including same sex marriage in a case that had nothing to do with that.

Meanwhile, Sutton points out numerous times that the reason these state constitutional marriage bans were pushed was due to the Mass. Goodridge case striking down Mass. SSM ban. Sutton says that people feared their state courts striking down their marriage laws so they enshrined them in their state constitutions. However, Sutton's own narrative shows that these constitutional SSM bans were not to "strengthen or affirm" traditional marriage. They were pushed to specifically target same sex couples and bar them from the right to marriage. This is clearly animus in a very similar style to what the Court saw in Romer. Gays and lesbians had no favored or "special" status under then existing CO law. So, a constitutional amendment barring gays and lesbians from the equal protection of the laws is functionally and intellectually similar to these SSM bans. State laws already prohibited SSM so a constitutional amendment saying the same thing simply targets gays and lesbians to deny them equal protection under the law.

Finally, Judge Sutton seems enamored with this judicial restraint and deference to "tradition" argument, even though he seems to acknowledge the harms that the traditional view has brought on the LGBT community. This theme struck me as eerily similar to Judge Taney's reasoning in Dred Scott where he notes that slavery is horrible but "tradition" and "original meaning" have tied his hands as to being able to change it. It seems Sutton gives that same sentiment in saying that "tradition" somehow overrides constitutional guarantees of equality simply because a majority said so.

David Ricardo said...

I would echo and reinforce to the strongest degree possible Mr. Dorf’s condemnation of this section of the ruling.

“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.

This section of the opinion is offensive and misguided to the extreme. Mutual tolerance is the concept that I will accept your actions in which I do not engage in and with which I disagree and which do not affect me and you will accept my actions in which you do not engage in and with which you disagree and which do not affect you. Example, I tolerate a Christian’s exercise of religion which is based on the divinity of Jesus and the Christian tolerates my exercise of religion that denies the divinity of Jesus. That is tolerance on a two way street.

But this is not the situation with SSM. Those who oppose SSM are not trying to keep the law from requiring them to engage in SSM or to oppose a law that would prevent them from entering into opposite sex marriage. They are attempting to force others to refrain from conduct which in no way affects, impacts or is in any way related to the conduct or beliefs or the practice of religion or anything else of those who oppose SSM.

A review of all of the litigation in this area shows there is not a scintilla of evidence that allowing SSM impacts those who engage in opposite sex marriage or those who do not marry at all. So demanding that those who support SSM ‘tolerate’ the views of those who oppose it is the height of hypocrisy with respect to tolerance. This is not two way tolerance, it is not even one way tolerance, it is intolerance at its maximum and should be labeled as such.

It really comes down to this. If you are opposed to SSM do not marry a person of the same sex. And yes, all of us will defend to the death your right not to have to marry a person of the same sex.

Joe said...

I think Nathaniel has some good points. The marriage section was particularly weak especially the quip that not a single justice challenged "traditional marriage." As noted by the dissent, that includes things like coverture that quite clearly now would be seen as unconstitutional.

Overall, the whole thing sounded like it had an agenda. Honestly, many judges do, but as the dissent noted, it was rather heavy-handed about it. And, this stacked the deck. So, e.g., I think Windsor was partially about federalism but like some that isn't enough. It has to be "only" about federalism.

It is appreciated the guy isn't a bigot (not being facetious here) but his bias toward letting the political process handle this shows. I honestly find it hard to imagine an opinion upholding these bans that would seem credible to me but this isn't it.

Sam Rickless said...

I wonder whether the fact that you are acquainted with Judge Sutton leads you to give him too much credit. I am still reading the opinion, but mostly it strikes me as breezily and arrogantly dismissive of very basic points (that might be) made by his opponents. A good example of this is his response to the claim that the original meaning of the Fourteenth Amendment requires state recognition of SSM if there is state recognition of opposite sex marriage (OSM). Sutton quotes the Fourteenth Amendment and then pens the following breathtakingly ignorant or dishonest sentence: "Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage." That's it. Done. Cooked. Finito. Put a bow on it. Really? REALLY?

So much has been written on this issue (including by one of the Justices on SCOTUS for whom he clerked) that it boggles the mind that Judge Sutton would even THINK of writing this sentence. For original meaning originalists, it's not what the adopters of a provision understand it to REQUIRE that determines how the provision should be interpreted: it what the adopters of the provision understand it to MEAN. One example that shows this has been around for so long that one wonders whether Judge Sutton stopped reading about originalism when he was an undergraduate. The adopters of the Fourteenth Amendment did not understand it to FORBID de jure segregation. We know this because they SEGREGATED the DC schools! And yet it is now settled doctrine that the Fourteenth Amendment forbids de jure segregation.

Judge Sutton can't recognize, or just plain ignores, the difference between (what Jack Balkin and others call) original meaning originalism and original expectations originalism. This is intellectually disgusting, evincing either stupidity or intellectual dishonesty.

I'm sorry, Mike. Sure, I care about whether Judge Sutton is a bigot. But I also care about whether he knows how to read.

Sam Rickless said...

Did I say that Judge Sutton's opinion is breezy? Here's another gem: "We do not deny the foolish, sometimes offensive, inconsistencies that have haunted marital legislation from time to time. States will hand some people a marriage license no matter how often they have divorced or remarried, apparently on the theory that practice makes perfect." Oh, Jeffrey, you're such a card! Ha ha ha ha ha! I can't stop laughing!

In case you hadn't noticed, Judge Sutton, gays have been beaten, stabbed, dragged through streets behind vehicles, killed, their bodies mutilated, and this has been going on, yes, since the stone age. Gays have been too afraid to come out of the closet, for fear of what they would face from family members, friends, co-workers, and the government. Many have committed suicide. But (ha ha ha ha ha), let's just talk about how silly these legal inconsistencies are. Let's JOKE about how treating people inconsistently makes their lives worse and denies them the dignity that they deserve as human beings. What a sense of humor this non-bigot has!

Sam Rickless said...

Oh, and here's another doozy that makes me worry whether Judge Sutton has the ability to think, let alone read. Hanging over the head of every judge who thinks that we should leave it to the States to regulate marriage is the Loving decision. It's the elephant in the room. The 2 ton behemoth. It needs to be moved. And for this, some pretty heavy lifting is needed.

And what do we get from Judge Sutton? Ten sentences in a short paragraph. That's it. Finito. End of discussion. See ya later alligator.

And we get this loveliness: "Had a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so."

But honestly, who on earth cares? This is a stupid question. To see just how stupid, let's reframe it: "Had a heterosexual African-American male and a heterosexual Caucasian female been denied a marriage license in Virginia in 1908, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment?" Answer: No. But what does that prove? Ab-so-lu-te-ly nothing. Just as the 1908 SCOTUS would have been mistaken in upholding the constitutionality of denying a marriage license to a mixed-race couple, so the 1968 SCOTUS would have been mistaken in upholding the constitutionality of denying a marriage license to a gay couple. Unless, of course, perhaps like Judge Sutton, you believe that, magically, what was not unconstitutional in 1908 BECAME unconstitutional in 1968. I'm just sick of this kind of idiocy.

The thing is, this stuff is OBVIOUS. It has been pointed out so many times, in so many cases now, that one wonders what Judge Sutton was doing with his time when he was preparing to write this opinion.

Sam Rickless said...

Sorry. Here's another doozy. Even after conceding "the lamentable reality that gay individuals have experienced prejudice in this country", Judge Sutton insists that "we also cannot deny that the institution of marriage arose independently of this record of discrimination". Really? REALLY? Wow, Judge, that's an empirical claim. Are ya a historian or somethin? What's the evidence for this claim? Here it is: "The traditional definition of marriage goes back thousands of years and spans almost every society in history. By contrast, 'American laws targeting same-sex couples did not develop until the last third of the 20th century' (quoting Lawrence). This order of events prevents us from inferring from history that prejudice against gays led to the traditional definition of marriage..."

Wow! I can't believe I'm reading such drivel. Let me get this straight. The argument is that the definition of marriage predates American laws targeting same-sex couples, and therefore the institution of marriage arose independently of anti-gay prejudice. Non sequitur, anyone? Let's see, hmmm. Prejudice is not the same as American laws motivated by prejudice. Duh. Moreover, you don't NEED laws TARGETING same-sex couples if existing norms and mores, along with the beatings and killings, fed by prejudice, are keeping gays in the closet. The fact that American laws that explicitly target same-sex couples are of relatively recent vintage doesn't show that there wasn't serious and significant homophobia well before those laws were passed. And the evidence of homophobic oppression and violence antedating the recent spate of anti-gay legislation is so obvious that it would take a complete idiot or, yes, bigot not to see it.

Indeed, let us think about the tradition of sexual morality going back to the Old Testament. Gay sex is punishable by death in that revered book. I'm sure that gays and gay couples were routinely harassed, beaten, and stoned in those days, as they still are in some parts of the world today. But no, the definition of marriage that excludes same-sex couples from the institution "arose independently of this record of discrimination". What on earth is Judge Sutton smoking these days?

matt30 said...

I'm surprised that your animus section isn't included in a discussion about the ration basis test.

What does this test even mean anymore? Typically we talk about the fit between means and ends, but as this decision makes clear even post hoc justifications can satisfy some minimal means ends requirement.

Somehow animus works to sever a weak connection between means and ends but how exactly does that work?

Couldn't it be said that animus against thieves inspires laws against the act of stealing? I suppose the counter-argument is marriage bans disincentivize same sex intimate acts that are constitutionally protected, therefore the policy isn't irrational as a matter of logic but irrational with respect to a Constitutional norm/background assumption. However, other laws provide disincentives for exercising fundamental rights (e.g. abortion restrictions, certain legal police actions intended to persuade suspects from exercising rights) are those also illegal. I suppose you could say that the animus is directed at the LGBT community rather than the sexual act, but the problem with that is those people aren't a protected class--they might as well have the "thieves" label I used earlier.

It's a curious situation. IMHO, the animus discussion needs to be rooted in something deeper. Perhaps the due process language in Palko v. Connecticut which says that laws may not be incongruent with the concept of ordered liberty. It's OK to have animus against thieves because of the harm thier acts cause, but it's not OK to have animus against gays because there is no demonstrable social harm.

Captainron said...

The partners in a traditional marriage compact certainly hold differing assumptions regarding what the other's obligations are to them. A man expect some things of a woman, that he would not expect of a man, and women expect that the marriage will yield certain things for them, discovered via the courting process, that a woman would not give them. Although not consistent from one experience to the other, the partners have recognizable differing expectations. But what do two of the same sex expect of each other? So one can reason that the expectations between these two models might be different. That is distinguishing one from the other. I don't think that is the same as prejudice.

Joe said...

"man expect msome things of a woman, that he would not expect of a man"

Like what? As noted by the dissent here, a "traditional marriage" would have various things like coverture (husband controls finances etc.) that is quite different from today.

Joe said...

Romer v. Evans noted:

"the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests"

A law against stealing has a "legitimate" state basis and is not just a matter of animus against thieves. Merely because a law results in some sort of dislike to a group of people doesn't make it unconstitutional.

This is recognized by the comment but it is then noted that laws are in place that burden abortion rights. Sure. You can "burden" rights to some extent. The rule there is "undue" burden. So, a waiting period can "burden" abortion rights to some extent but it is argued there are legitimate state interests while the right to abortion remains.

Here, same sex marriage is blocked. Some states require a day or so wait after getting a marriage license, as I recall, but it would not be an "undue" burden on the right to marry.

I think the comment gets it right at the end basically (actual harm in thief situation) but not sure what the confusion was in the first place.

I think it might be reflective of some accounts that don't show enough nuance. So, unless the laws in place amount to pure bigotry, animus can't be shown. And, given Clinton signed into law DOMA, e.g., we don't think HE's a bigot, right etc.

Some are willing to bluntly say, "yes, this is a form of bigotry" but the word sounds harsh to some ears. An early opinion spoke of "a bare congressional desire to harm a politically unpopular group" being unconstitutional. That would merely be 'animus.'

There has to be a "legitimate governmental interest" involved. Perhaps, this is best called the 'mere' animus test. Romer spoke of nothing "but" animus. It also is a sort of red flag -- if a group is targeted in a special way (like a state constitutional amendment) -- we have to be sure it is not "mere" animus. There has to be a legitimate interest.

And, maybe, we are a bit more careful in determining that. As some say, "rational basis with bite."

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