Dale Carpenter thinks it may be drawing near:
Now that I’ve listened to all three hours, and if oral argument is any guide, I think the Sixth Circuit is likely to reject the claims for same-sex marriage and marriage recognition in a split decision. Most media accounts (see New York Times story here and the Post account here) also characterize the Court’s decision as a toss-up leaning toward rejection of the constitutional arguments for same-sex marriage, with Judge Daughtrey a very likely vote to strike down bans on same-sex marriage, Judge Cook a likely vote to uphold the bans, and Judge Sutton sitting in the middle but mostly critical of the claims. If anything, I’m a bit more confident that the Sixth Circuit will reject the claims than some observers seem to expect.
Ari Ezra Waldman unpacks Sutton’s judicial philosophy:
Judge Sutton is a bit of a wild card. A conservative — he wrote in the Harvard Law Review: “Count me as a skeptic when it comes to the idea that this day and age suffers from a shortage of constitutional rights” — Judge Sutton voted in favor of the constitutionality of Obamacare and does not always follow a party line. His questioning was back and forth, balanced between the sides. A review of his questions and a cursory analysis of some of his writings and decisions suggest that he is primarily concerned with judicial modesty and restraint. He thinks that the federal courts have done too much, creating new rights and reading rights and regulations into the Constitution that do not belong.
Mark Joseph Stern expects Sutton to rule against equality:
At one rather awkward point, Sutton launched into a strange monologue about the gay rights movement’s tactics, one that seemed barely tethered to the merits of the case at hand:
I would’ve thought the best way to get respect and dignity is through the democratic process. Forcing one’s neighbors, co-employees, friends, to recognize that these marriages, the status deserves the same respect as the status in a heterosexual couple. … If the goal is to change hearts and minds … isn’t it worth the expense? Don’t you think you’re more likely to change hearts and minds through the democratic process than you are through a decision by five justices of the U.S. Supreme Court?
These words should be very unnerving for supporters of same-sex marriage. Don’t come to us with your demands for equal protection and fundamental rights, Sutton implied; take your case to the voters instead. Being a legal stranger to your spouse and child isn’t so bad, he suggests, that you need to turn to the federal courts for relief. This reasoning stands in stark contrast to Kennedy’s Windsor opinion, which explained that marriage bans “demean” gay couples and “humiliate” their children. In Kennedy’s eyes, gay marriage bans “degrade” gay people. In Sutton’s eyes, they merely annoy them.