Marriage Equality Heads Back To SCOTUS? Ctd

Gay Marriage Becomes Legal in 5 States After Supreme Court Declines Challanges

After yesterday’s circuit split, Dale Carpenter’s hunch is that SCOTUS will rule on marriage in June 2015:

Petitions filed now don’t guarantee a decision during the current Term, of course. Ultimately, the Supreme Court’s decisionmaking schedule is in its own control. The Justices could receive petitions now and hold them over until next Term. Considering Justice Ginsburg’s view as expressed in September at the University of Minnesota Law School that a circuit split on same-sex marriage would create “urgency” on the issue, I don’t expect the Justices would do that.

To the extent that same-sex marriage advocates believe there are already five votes at the Supreme Court for same-sex marriage (a view shared by astute Court-watchers on both sides, including NRO’s Ed Whelan), any delay only raises the risk that there will be an unfavorable change in the Court’s composition. In light of Tuesday’s election result in the Senate, there can be no certainty that a favorable Justice would be replaced by an equally favorable one in the next couple of years. The seat could remain vacant, meaning a 4-4 split at the Court (which would affirm the adverse lower court ruling) and perhaps mean a re-argument after 2016 when the Court returned to full strength. Nobody can know what the 2016 election holds. Why risk it?

I’m not a constitutional lawyer, but I found the ruling a rather eloquent defense of judicial minimalism that ducked a lot of the core issues raised by the Supreme Court’s more recent rulings on the matter. It felt more like an essay in the Claremont Review than a tight constitutional argument. But a legal reader argues that it should not be under-estimated:

Jeffrey Sutton wrote the majority opinion.  He is by far the most-risen of the conservative “rising stars” in the judiciary, and if a Republican wins the White House in 2016, he WILL be the next Supreme Court justice.  His opinion is all about the limited role of the federal judiciary and is one of the most eloquent examples of what judicial conservatives think the opposite of “judicial activism” looks like.  I have a hard time envisioning the 5 conservatives on the Supreme Court reading Sutton’s opinion and not saying “Damn!, he’s right.”

I’ll qualify this by admitting that I am a pessimist by nature, but I am convinced that this Supreme Court will soon grant cert on one or more of these cases and will (in a 5-4 decision, of course) uphold the constitutionality of gay marriage bans before July 2015, and will do so in an opinion that looks a lot like Sutton’s.

Ilya Somin nonetheless points out some weak spots in Judge Sutton’s argument:

Sutton believes that the entire question of heightened scrutiny was foreclosed by the Supreme Court’s one line opinion in Baker v. Nelson (1972), which dismissed a same-sex marriage case on the grounds that it failed to present a “substantial federal question.”

Sutton argues at length that Baker is still good law, despite multiple Supreme Court decisions since then, which seem to cut against it. But Sutton completely ignores the fact that Baker was decided before the Supreme Court first ruled that gender classifications are subject to heightened intermediate scrutiny, which did not occur until Craig v. Borenin 1976. If Sutton wishes to rely so heavily on Baker’s cursory non-analysis of the same-sex marriage issue, he at least needs to explain why Baker was not superseded by the Craig, and by the many other Supreme Court decisions applying heightened scrutiny to gender classifications since then (including in cases where the discrimination in question was not motivated by animus or hostility to either men or women, as such).

Jay Michaelson likewise reads through Sutton’s ruling. His bottom line:

Ultimately, the jurisprudential tour de force that is the Sixth Circuit’s opinion is full of sound and fury, but it signifies less than it appears. It is a valiant, encyclopedic attempt of a star jurist to give voice(s) to an embattled philosophical position. You’ve got to admire the effort. But in a few years, it will likely be a footnote.

Judge Martha Craig Daughtrey, who was on the panel with Sutton, issued a strongly-worded dissent. Zack Ford highlights her key argument:

While Daughtrey’s opinion challenged many of the majority’s arguments, she made an overall point that encapsulates what’s lacking — and harmful — about the most modern arguments against marriage equality.

“In the main, the majority treats both the issues and the litigants here as mere abstractions,” she wrote. “Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win ‘the hearts and minds’ of Michigan, Ohio, Kentucky, and Tennessee voters to their cause.”

That’s the biggest divide between the two sides on same-sex marriage: is it an issue, or is it about people?

(Photo: Suzanne Marelius, (R) and Kelli Frame, (L) hold hands as they wait in line at the Salt Lake County Recorders Office to get a marriage license on October 6, 2014 in Salt Lake City, Utah. By George Frey/Getty Images