The End Of Marriage Equality’s Winning Streak?

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.


Chart Of The Day

Yesterday, Virginia’s marriage equality ban bit the dust. Burroway charts the progress of the gay rights movement:

Equality Chart

Emma Green explains what makes the VA ruling stand out:

The question of “rights” is exactly what makes this decision significant, said Claire Guthrie Gastañaga, the executive director of the American Civil Liberties Union of Virginia. Unlike some other cases on same-sex-union laws, Bostic examines whether couples have a fundamental right to marriage. The judges applied strict scrutiny, the highest standard of legal review, under which the government has to show a compelling interest for limiting the plaintiffs’ ability to marry. “This court says very clearly: This is a fundamental right, and the government just didn’t meet their burden of explaining why there should be a [ban on] same-sex marriage,” Gastañaga said.

Dale Carpenter observes that the ruling referred to the ban as a form of “segregation”:

The idea that laws limiting marriage to opposite-sex couples are a form of segregation is historically loaded, especially for a court sitting in the heart of the old Confederacy. Analogies to the black civil rights movement, and in this context specifically to anti-miscegenation laws and second-class status, have become a staple of gay-rights political and legal arguments. Rarely have they gained quite this explicit an endorsement from a prominent court.

Mark Joseph Stern describes the striking down of Virginia’s gay marriage ban as “the latest victory for marriage equality in a unbroken string of triumphs since the Supreme Court overturned DOMA in 2013.” On what the opinion could mean for other states:

Although the court struck down only Virginia’s marriage ban, the 4th Circuit also has jurisdiction over Maryland, West Virginia, South Carolina, and North Carolina. The latter three states still ban gay marriage—but today’s ruling throws those laws in serious jeopardy.