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Sixth Circuit arguments: a person-by-person approach to winning marriage equality?

LGBT Legal Cases Marriage equality Marriage Equality Trials

Sitting in the federal courtroom in Cincinnati, listening to the Sixth Circuit arguments in six same-sex marriage cases, one theme seemed especially prevalent: state defenders of same-sex marriage bans argued that the issue should be left up to “the democratic process”, and their concerns were shared by Judge Jeffrey Sutton.

Judge Sutton asked the plaintiffs’ lawyer in one case, “assuming you win,” isn’t it better and more honest to win by way of the democratic process? Sutton, whose background is in leading litigation that promoted federalism, alternatively wondered aloud whether LGBT people should win their rights by changing every person’s mind, and whether states are permitted to move one step at a time, addressing issues incrementally, even though their approach may leave some groups without protection for long periods of time.

A short and rhetorical answer to this problem is Justice Jackson’s opinion in West Virginia Board of Education v. Barnette, in which he said that “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” That was one answer given by the plaintiffs.

Judge Sutton seemed to suggest in his comments that the “dignity” that Justice Kennedy addressed in United States v. Windsor was tied to the fact that in New York, there was a decision by the state to recognize same-sex marriages performed in other jurisdictions. Without the state’s approval, he seemed to be saying, the win is less legitimate.

There are several problems with this line of thinking, and ultimately the Sixth Circuit may not adopt it because of those problems.

First of all, no group in history has been told that they need to seek their rights person-by-person with no judicial intervention, at least post-Fourteenth Amendment. (Pre-Fourteenth Amendment, when Dred Scott v. Sanford was in effect, Black people were said to have no Constitutional rights that were worthy of respect.) It’s hard to imagine any group that has been unable to vindicate their rights through the courts. Even proponents of federalism themselves have sought and won victories through the judicial system: look at all the challenges to Obamacare, and to last year’s Bond v. US, as well as cases challenging environmental regulations. Were courts to hold that LGBT people have to win by changing the heart of each person in the United States, it would be the first time courts have said so since the adoption of the Fourteenth Amendment, which leads to the question of why LGBT people would be singled out in that way.

Secondly, it has to be noted that this argument is being made after almost every state has held voter initiatives on the question of same-sex marriage bans, and in most states, constitutional amendments have been added so that no legislative action can even be taken on the question. Now that the scales are tilted decisively one way, some judges want to step in and say courts should let the democratic process work itself out. With constitutional bans in place, it’s no longer a matter of voting for legislators who share a pro-equality view of marriage; voters have to go to the polls and vote in favor of equality.

Third, the process is even more lopsided in favor of the status quo than that: states have different ways of putting issues on the ballot. In some states, legislators are required to vote to place an initiative on the ballot; in some states, those legislators have to vote in two consecutive sessions before the measure even makes it to the voters. In many of those states, legislators don’t want to be in the position of putting the issue on the ballot. In other states, signatures are required to place an initiative on the ballot, and sometimes gathering those signatures can be cost prohibitive. And it adds another layer: voters have to be convinced not only to vote for equality, but to place the issue on the ballot in the first place. These aspects mean that the process can take years, even before the issue is actually on a ballot.

Fourth, ballot initiatives can be expensive, an issue raised during the arguments. In fact, the Prop 8 campaign in California cost over $83 million in total. And there are no guarantees of winning: in only four states have voters supported equality; three affirmed laws granting same-sex marriage rights, and one declined to adopt an anti-gay amendment to the state constitution. LGBT advocates can’t be expected to raise millions in every state simply because some judges think it might be a more dignified way to win.

Judge Sutton suggested, along with the person-by-person approach, that maybe states themselves can address these issues with incremental, under-inclusive steps. At one point, he asked an attorney to imagine a world without marriage, and imagine how it might be approached step-by-step. He suggested that perhaps state legislators would see the problem of parents having children and choose to institute marriage first as a way to deal with that problem, and then, eventually, include others within the definition of marriage in subsequent actions.

He didn’t really address how that view aligns with Loving v. Virginia. If marriage really was first conceived as a way to deal with children and to provide them stability and support, then there would have been no conceivable reason to separate the races for purposes of marriage. There would have been no “step two”, in which a state might later add interracial couples, or a court might later decide that they’re worthy of marriage. It wouldn’t have been an issue at all.

As I said in my earlier post, his questions on these subjects led to a debate, through lawyers, with Judge Daughtrey, who seemed inclined to take a broader view of the court’s responsibility under the Constitution.

Early in the arguments, she told the lawyer for Michigan her view of the federalism aspects, when she noted that as recently as the late 70s, Tennessee had a racist provision embedded in its constitution, and when it was subjected to a ballot initiative, it was removed, but only with a margin of 8,000 votes. Later, when Judge Sutton pressed the argument again, she noted that it took 78 years of campaigning for women to win the right to vote. Moreover, Judge Daughtrey commented on how difficult it would have been for same-sex marriage to be more prominent, and more of an openly-discussed goal of the LGBT movement, suggesting that since for most of history, people who are gay could have been arrested for same-sex intimate relationships, it seems obvious why same-sex marriage itself isn’t embedded in our history and tradition, and wasn’t something that was pursued until fairly recently.

Were the court to hold that going slow is permitted when it comes to marriage equality, it’s impossible to know how long it might take for states to even allow its voters to decide. As one lawyer for the plaintiffs in one case said, the couples and their children who brought their challenge in federal courts are entitled to their rights now, not at some later point when voters can reverse their past decision.

As I wrote before, it’s not obvious which way the Sixth Circuit will rule. In both the Tenth Circuit and Fourth Circuit cases, there were indications that the pro-equality side had at least two votes. Here, there were two judges who seemed to hold opposing views, and then there was Judge Sutton, who directed difficult questions at both sides, and who seemed unclear himself about his own views on the question.

At the end of the arguments, Judge Sutton said they would have a ruling “soon”.


  • 1. MichaelGrabow  |  August 11, 2014 at 8:13 am

    "isn’t it better and more honest to win by way of the democratic process?"

    More honest??

    Is having a court rule that this unconstitutional law should have never been passed in the first place cheating our way to equality?

  • 2. Scottie Thomaston  |  August 11, 2014 at 9:08 am

    it's this whole idea that pursuing judicial remedies is less valid than vote-begging. Meanwhile, conservatives have used the judicial process for essentially all their wins in at least the past decade. Seems hypocritical.

  • 3. Eric  |  August 11, 2014 at 9:30 am

    It would be more honest to admit that superstition is the reason for anti-gay laws.

  • 4. Bruno71  |  August 11, 2014 at 11:12 am

    The lawyer should've just said, "look judge, shit or get off the pot. It's either constitutional or it's not, don't give me this mumbo jumbo about elections." OK maybe in a softer way…

  • 5. Paul_In_Mpls  |  August 11, 2014 at 7:14 pm

    Exactly. The question before the court was not how best to win over the public, or how honest a court win would be, but rather whether the existing ban is constitutional. Simply put, the constitutionality of the ban – and nothing else – is all that the court should be considering.

  • 6. GregInTN  |  August 11, 2014 at 8:38 am

    Considering that Judge Sutton (a) spent considerable time discussing Baker v. Nelson which was dismissed in 1972 and (b) questioned whether marriage equality was happening too fast, it appears that he feels that 42 years is not long enough to wait.

  • 7. brandall  |  August 11, 2014 at 8:42 am

    "Person-by-person approach" – And in the decades it would take to do this, how many millions of heartbreaking stories like this one is Sutton willing to allow?

    "The death certificate was the hardest part…I lived here with him for 20 years…On relationship, I had to put down: friend.”

  • 8. robbyinflorida  |  August 11, 2014 at 8:43 am

    Question. If the Utah case is granted cert. and the Virginia case is denied will all the states in the 4th circuit have ME immediately? .

  • 9. Scottie Thomaston  |  August 11, 2014 at 8:47 am

    Well first, if the Utah case is granted, it's more likely all the other petitions will be held pending the resolution of that case. They probably wouldn't grant a marriage case and at the same time allow the decisions in other circuits to stand.

    But to answer your other question. denying cert would mean the lower court opinion remains binding on that circuit. I think the cases in the other states in that circuit would have to continue until there's a ruling, but then there's the issue of whether states would continue fighting it if the appeals court has already ruled.

  • 10. DrPatrick1  |  August 11, 2014 at 10:15 am

    Even if they continued the appeals process, it would be extremely unlikely, in such an unlikely scenario as is presented in the question, for the customary stays, in the case of a gay case, to be issued. Thus, if the 4th circuit cert request was denied by SCOTUS, VA would certainly have marriage as soon as the 4th circuit did the necessary cleanup of the stay that is currently in place. Then the remaining District court cases in the 4th circuit would necessarily issue their summary judgements rather quickly, giving a pro ME ruling to the remaining 4th circuit states. The states would likely appeal, but the appeal would be unsuccessful, and there will be no stay issued pending the appeals process. ME would come to the 4th circuit rather quickly.

    IN ADDITION, I would think this would have broader implications. It would give a pro equality minded judge the ammo not to issue a stay in a non-4th circuit state, give the other circuits who want to remove the stays currently in effect the ammo to remove their stays, and might make it less likely SCOTUS will issue any further stays.

    Denying any of the cert requests in similar cases while at the same time granting cert in one case would be such a tipping of their hand that it is extremely unlikely for SCOTUS to do so. The only conceivable reason would be for ME to be considered by SCOTUS to be such a noncontroversial next step, but necessary to establish a nationwide precedent. It is unlikely that a probable 5-4 decision, no matter how the decision comes out, would be considered such a noncontroversial topic.

  • 11. Mike_Baltimore  |  August 11, 2014 at 11:06 am

    SCOTUS also has the option of holding onto any requests for cert it has received, then dismissing (denying) them when the decision in the Utah case is announced, or dismissing them after a decision is handed down, as happened in 2013. There were several cases that SCOTUS didn't act on until after the decisions in Hollingsworth and Windsor (the First Circuit case out of MA comes to mind).

    If a case is held, and there is a stay on the case, then the status quo holds until SCOTUS makes a decision, be it for or against the party being sued, in a similar case. Thus, the other states could see ME immediately (if cert is denied), in late June 2015 (if the case is held and SCOTUS rules against Utah), or sometime in the unknown future (if SCOTUS rules in favor of Utah).

  • 12. F_Young  |  August 11, 2014 at 8:47 am

    "isn’t it better and more honest to win by way of the democratic process?"

    What an insulting question. It suggests anymus, on the part of Sutton.

  • 13. bayareajohn  |  August 11, 2014 at 9:34 am

    These are not the arguments of serious judges.

  • 14. SeattleRobin  |  August 11, 2014 at 1:57 pm

    I listened to the oral arguments and Sutton didn't come across as a bigot to me. In the two previous circuit court oral arguments it was pretty clear when judges didn't like us. Sutton has a bug up his butt about state's rights and seems horribly ignorant about the reality gay people face in their everyday lives, but that's not the same as holding genuine animus. (Actually, it was clear here that Cook doesn't like us either.)

  • 15. MichaelGrabow  |  August 11, 2014 at 8:52 am

    I can only hope Judge Sutton is making such absolutely ridiculous and insulting remarks to try to play devil's advocate to the most extreme degree and will vote alongside Judge Daughtrey.

  • 16. brandall  |  August 11, 2014 at 9:14 am

    That is also my hope. He wanted to genuinely and firmly explore both sides of the arguments, but knows "person-by-person" campaigns for minority equal rights hasn't worked for over 200 years. But, then we read he clerked for Scalia and I can't help but wonder if he's part of the religious-like zealot cult that strictly reads constitutional rights based on an 18th century interpretation.

  • 17. Eric  |  August 11, 2014 at 9:33 am

    These so-called strict constructionists always seem to ignore the Ninth Amendment.

  • 18. Zack12  |  August 11, 2014 at 11:14 am

    And the 14th.

  • 19. sfbob  |  August 11, 2014 at 2:12 pm

    And, in some cases, reality.

  • 20. Dann3377  |  August 11, 2014 at 9:27 am

    Sutton can not be this naive and/or stupid. Or is he??

  • 21. annajoy1  |  August 11, 2014 at 9:32 am

    The more I read about Sutton, the more pessimistic this optimist becomes!

  • 22. bayareajohn  |  August 11, 2014 at 9:38 am

    (Reposting in part from a buried sub-sub topic)
    I think you miscast Sutton and his similarly thinking Right as lacking understanding that our minority has a dismal outlook for speedy rights via voters. The subtext in many of these arguments is that we remain icky to too many people, and we need to change THAT if we want the masses to let us share in the public world. So if we clean up our image enough to merit acceptance by the majority, we'll have earned that acceptance, and if not, NOT. It's a disregard for us, and an implication that we are discriminated against with good cause, not a misunderstanding.

    They differentiate in their minds the LOVING and other cases we see as similar, because they (now) think that racial bias is wrong. They think that anti-gay bias is justified.

  • 23. RQO  |  August 12, 2014 at 1:33 pm

    I thought about your "subtext" remark for a day, and the whole proud sub-culture vs. Log Cabin mainstreaming tension, and am ready to say; 1) you nailed it, and 2) when does "diversity" sink in? If there is room for the Amish, the Mormons,and the Oneida free-love sect, surely there is room for us. Perhaps we have missed the boat and should declare ourselves a religion, the only thing which seems to grab SCOTUS' attention to leaving minorities alone.

  • 24. bayareajohn  |  August 12, 2014 at 1:58 pm

    The "mainstreaming" that quasi-supporters like Sutton may be waiting for is a chicken-vs-egg thing. Your comment referencing the "whole proud sub-culture" is an inextricable mix of both cause and effect, curse and diversity.

    It is sometimes argued that the cultural diversity that marks the LGBT communities is a direct result of the closeting, societal shunning, internalized self-rejection leading to an ultimate super-nova emergence of self-actualization that further distances an enlightened LGBT from the "straight culture".

    That line of thought implies the concept that the "aberrant" and "bizarre" behaviors that support the straight impression of what LGBT is about … might actually significantly diminish in a society that was ethically indifferent to sexual orientation. Without the need to hide and find a secret outlet and society, mainstreaming of the "culture" might occur as well.

    There's also the somewhat competing theory that on the whole, LGBT people are a lot more ordinary that the straight world knows… that many, perhaps even a majority of LGBT people go under the radar and may prefer that to avoid stigma. They aren't part of the "proud subculture" of in-your-face gender bending, sex-binging, bondage and role playing… This concept suggests that many invisible LGBT are already mainstreamers, and simply not recognized by straights as even possibly existing.

    Under either theory, and most others, exposure of all that LGBT is… may eventually win those hearts and minds that Sutton wishes for. History would indicate that this path can take a very long time, may not come at all, or may be reversed by later social changes…

    What we can do, now, is advance legally. That's why we do it, that's why we must do it if we hope to see change within our lives. That's why it's right to do. NOW.

  • 25. RQO  |  August 12, 2014 at 2:42 pm

    Perhaps a “reply” gets to you w/o a superfluous post on-site. Thanks, my thoughts (having moved from Palm Springs to Colorado ex-urbia and yes it might as well be Kansas) and older now, exactly. I suppose I wish most for citizens to distinguish between legal acceptance and social tolerance. A clear difference to me, but of so difficult to achieve in practice – ESPECIALLY at the ballot box.   – Rick Opler

  • 26. DoctorHeimlich  |  August 11, 2014 at 10:24 am

    I think Judge Sutton may well offer a preview of what we should expect from Chief Justice Roberts when we're before the Supreme Court.

    We all know where Scalia stands. His ranting dissents in Romer, Lawrence, and Windsor all clearly reveal a bigoted mindset that thinks homosexuality should be criminalized.

    We almost certainly know where Thomas stands, despite the fact that he's written little and said even less. His separate Lawrence dissent dubbed laws criminalizing our so-called behavior as "uncommonly silly" — but he also doesn't think it's the job of the justice system to provide any relief. In his mind, gay rights are lumped in with affirmative action, voting rights, and such: Thomas thinks he got where he is today all on his own, and he thinks everybody else should pull themselves up by their own bootstraps too.

    Alito represents a fusion of both. He demonstrates the apparent animosity of Scalia and adds Thomas' indifference to the oppression of the majority. He's a hopeless cause.

    Which leaves us to read the tea leaves on Roberts. He did vote against us in Windsor, but with some notable limitations. He specifically wrote a dissent to point out his belief that Windsor itself did not decide the issue of same-sex marriage itself. And he only signed on to the portion of Scalia's dissent relating to standing; he specifically did NOT sign on to the lengthy anti-gay rant, nor did he join Alito's pontification about the competing definitions of marriage.

    So it seems probable that on this issue, Roberts sits closer to the center than any of the other three. He probably does have compassion for the LGBT community. (We know it's hard not to when you have a gay or lesbian family, as he does — his cousin.) But it may be that his judicial world-view prevents him from acting on that compassion.

    That's exactly the impression I got from listening to Sutton during the Sixth Circuit arguments. He actually made points for our side at times, and said flattering things at others (suggesting, for instance, that gays might even make better parents). And it didn't seem like he was just blowing smoke to me; the compassion seemed genuine.

    But will his judicial world-view allow him to act on it? Sadly, I find myself skeptical on that at the moment. But I do think a careful review of the oral arguments could reveal the strategies most likely to prevail on Chief Justice Roberts. Roberts and Sutton seem cut from the same judicial cloth. Any points that seemed to work on the latter ought to be polished up and attempted on the former.

  • 27. JayJonson  |  August 11, 2014 at 10:35 am

    Roberts's dissent in Windsor concentrated on standing issues, but he gratuitously volunteered that he thought DOMA was perfectly constitutional. Roberts has never gone out of his way to support gay rights. I doubt that he has any compassion for gay people, including his cousin, though admittedly he is more polite than Scalia and smarter than Alito. I do not think he will join the five-member majority that will vote for a national marriage equality ruling. I cannot see on what basis he could believe that DOMA is constitutional, yet believe that a state's ban on same-sex marriage was unconstitutional.

    Do you really think that Thomas is delusional enough to believe that "he got where he is today all on his own"? I give him credit for knowing better than that. I think he knows that he was placed on the Court to be a right-wing ideologue and he is performing just as he was told to perform.

  • 28. Zack12  |  August 11, 2014 at 11:15 am

    I don't think that is the reason at all with Thomas.
    He blames affirmative action and other things for why people didn't respect him but IMO, it was really because they saw him for what he was, a hack who has no business being dogcatcher, let alone a judge.
    HIs rulings now are done solely to stick it to all of those people.
    Such a shame Marshall couldn't have held on just a little bit longer, we lost a national treasure and replaced him with the worst Supreme Court justice of the past 100 years.

  • 29. jjcpelayojr  |  August 11, 2014 at 10:58 am

    Is Loving v. Virginia less "honest" because it came about via judicial fiat? Is Brown v. Board of Education less "honest" as well? Wish one of the lawyers responded in that manner.

  • 30. Zack12  |  August 11, 2014 at 11:40 am

    Sutton is simply a product of the Right wing's success in stacking the bench with young conservative judges whose sole purporse is to overturn any and all progressive legislation of the past 50 years, gut protections for all workers in the favor of the rich and make sure any laws that favor keeping Republicans in power are upheld while veering the courts to the right.
    Everything else, such as gay marriage, voting rights, reproductive rights they tell the states or Congress to handle, knowing full well that neither is really an option for many of these groups.
    It's a shame our side didn't realize what the Right figured out long ago, the courts matter. Our side has finally understood that but too little too late.

  • 31. David_Midvale_UT  |  August 11, 2014 at 3:52 pm

    How flipping long do you think racial equality would have taken if citizens of color took the "one voter at a time" approach? Flippitty Flipping Flip! George "Segregation Forever" Wallace allowed the integration of the University of Alabama only after President Kennedy nationalized the Alabama State National Guard.

    Let's put Sutton's personal liberty up for a popular vote and see how long it takes him to squirm.

  • 32. Rik_SD  |  August 11, 2014 at 5:01 pm

    The answer to that is pretty clear. Gallup tracked public opinion of interracial marriage going back to the 50s. At the time Loving was decided, almost 3/4 of the public opposed it. We didn't cross the 50% threshold until… wait for it… 1996

  • 33. Bruno71  |  August 12, 2014 at 2:07 pm

    One could argue the 1996 public approval threshold wouldn't have been crossed yet without a national right to marriage in place for 30 years. Perhaps that threshold would never have been reached without the communication from our highest court that marriage is a fundamental right for all human beings.

  • 34. Rik_SD  |  August 11, 2014 at 5:02 pm

  • 35. Margo Schulter  |  August 11, 2014 at 4:29 pm

    In at least partial defense of Judge Sutton, I would point out that this was an oral argument, where the judges are supposed to be probing for the best arguments of each side, and to be questioning any arguable weak points. “Why not win through the legislature or ballot box?” is a legitimate question, to which I would add that there are compelling answers.

    But I can see how Judge Sutton might have been focusing on legislative victories in such places as Hawai`i and Illinois, and also on polls showing clearer and clearer majorities for marriage equalities in a number of States with bans still in place, and more especially among younger people.

    Of course, one reply stated early and often here is that constitutional amendments have created barriers to the normal legislative process. Also, as Judge Sutton himself seems aware, marriage bans are questionable on equal protection grounds even under rational review (which is deferential but not toothless), and more so under the kind of “rational review with bite” that Justice Kennedy seems to favor.

    Curiously, I might nominate Zablocki v. Redhail (1978) as a case indicating that, since marriage is a fundamental right, the State of Wisconsin had a much more coherent rationale for its restriction in that case on people owing child support, which comes at least closer to an argument of serious people. And, there, such parents owing child support but wishing to marry were not required to carry their case to the voters and legislators of Wisconsin.

    I am yet hopeful that Judge Sutton may follow the example of Judge Holmes in the Tenth Circuit: ask tough questions of both sides at oral argument, and then apply the Fourteenth Amendment to prevent discrimination which the Constitution prohibits regardless of the state of public opinion.

  • 36. In-Depth Analysis of the &hellip  |  August 12, 2014 at 6:16 am

    […] Authored By Scottie Thompson – See the Full Story at Equality on Trial […]

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