Thoughts in a Haystack

There is a nice article by Doug Kendall and Brianne Gorod entitled "Judge Sutton's Loving Problem" at Constitution Daily, deconstructing Judge Jeffrey Sutton's recent Sixth Circuit Court of Appeals opinion upholding same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee. As can be easily guessed from the title, the authors focus on the famous Loving v. Virginia case.

... There are a lot of problems with Judge Sutton's opinion, but one in particular makes clear why his decision can't stand when the Supreme Court ultimately rules on marriage equality: If Jeff Sutton is right, Loving v. Virginia is wrong.

There are few Supreme Court cases that are as universally celebrated today as Loving v. Virginia ...

It's difficult to read Loving as anything other than a strong endorsement of a broad right to marriage equality in the Constitution. The Fourth Circuit, for example, relied in large part on Loving to conclude that "the Supreme Court has demonstrated that the right to marry is an expansive liberty interest," and it noted that Loving and other Supreme Court cases "speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right." The Seventh Circuit, in an opinion written by Judge Posner, noted that Wisconsin's argument that tradition supported its ban on same-sex marriage "runs head on into Loving."

Yet Judge Sutton treats Loving as a museum piece—an interesting historical artifact from the twentieth-century—rather than a binding precedent of the U.S. Supreme Court that can be trusted to guide his decision making in the twenty-first century. Indeed, in a 42 page opinion, Sutton dismisses Loving in barely more than a page. He acknowledges that Loving held that "'marriage' amounts to a fundamental right," but nonetheless concludes that "the right to marry in general . . . nowhere appear[s] in the Constitution." Apparently to Sutton, the right to marry is fundamental, but not to be trusted. Sutton continues by declaring that when the Court decided Loving, "marriage" was understood to be between a man and a woman, and "Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage." It did not, he writes, "create a new definition of marriage," and so it is wrong to "transform the fundamental-rights definition of Loving under the old definition into a constitutional right under the new definition." But given the history of anti-miscegenation in this country, it could also have been said that before Loving, the definition of marriage was limited to a man and woman of the same race, and Loving changed that definition. Sutton's analysis amounts to a roundabout way of saying that although Loving does recognize that "the right to marry" exists in the Constitution, he just doesn't think it's a right that should be enjoyed by same-sex couples. ...

It's particularly ironic that Judge Sutton was willing to give so little deference to Loving given that he was willing to defer to the Supreme Court's one-line order in Baker v. Nelson, which dismissed "for want of a substantial federal question" an appeal from a state court decision upholding a same sex marriage ban. As Judge Posner noted in the Seventh Circuit's marriage equality case, Supreme Court precedent no longer binds lower courts when there have been intervening changes in the doctrine, and "Baker was decided in 1972—42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned." ...

It's disheartening that Judge Sutton was so willing to follow the essentially defunct Baker and so unwilling to follow the still vibrant Loving. Because if Loving is right, Jeff Sutton is wrong.

There are other legal technicalities addressed that make reading the whole article worthwhile but the gist of it is right, true and just ... unlike Judge Sutton's decision.