On Thursday, Judge Jeffrey Sutton of the Sixth Circuit begged the Supreme Court to stop leading from behind.
Tell us the answer, Sutton seemed to say in his opinion in Love v. Beshear. A decision of this magnitude is your job, not that of a court of appeals.
That blunt demand—that the Supreme Court must answer the issues posed by same-sex marriage—is the only thing new about Sutton’s opinion. The George W. Bush appointee argues that voters and legislatures should settle the issue, not courts. But he repeatedly notes that the Supreme Court could do it and, by implication, should.
Sutton’s opinion is calm, careful, and level in tone. Rhetorically there is no hint of prejudice or stereotype. Indeed, the opinion seems to accept that same-sex marriage is here to stay. But courts, he says, should not make that decision. It justifies its conclusions in terms of past and recent Supreme Court precedent. If, for example, majorities can decide to impose sectarian prayer in public meetings (Town of Greece v. Galloway) and outlaw affirmative action (Schuette v. BAMN), why can’t they decide the contours of marriage?
On the merits, the opinion advances no new argument at all. It simply rehashes, calmly and thoroughly, the arguments that opponents have long advanced. Same-sex couples cannot conceive children and thus do not need marriage. Matrimony is a state-created “incentive for two people who procreate together to stay together for purposes of rearing offspring .... [C]ouples of the same sex do not run the risk of unintended offspring.” The voters and legislators of a state have the prerogative to decide to decide on a slow-march to the unknown future of same-sex couples: “A Burkean sense of caution does not violate the Fourteenth Amendment.” The right to marry is fundamental, but the right of same-sex marriage is a new and different right; Loving v. Virginia and other marriage cases “did not redefine the term but accepted its traditional meaning.” Discrimination against gays and lesbians may be regrettable, but the Supreme Court has never held it deserves special scrutiny, like sex or race.
And most importantly, the people, not courts, should decide the existence of a “new right” to marry:
When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.
There is a blind spot here, both about the case at bar and about the role of the courts. The plaintiffs in Love v. Beshear are already “heroes of their own stories.” They don’t need Sutton’s approval to play that role. They aren’t fighting over the distribution of power in a democracy. They are fighting for recognition of the most private yearning of the heart—a family.
In dissent, Senior Judge Martha Craig Daughtrey writes, “My colleagues view the plaintiffs as social activists who have stumbled into federal court, inadvisably, when they should be out campaigning to win the ‘hearts and minds’ of ... voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same sex couples” seeking “a civil right that most of us take for granted—the right to marry.”
Justice Anthony Kennedy’s opinion in United States v. Windsor recognized that both gay couples and their children have asked only to live together without official slight from the state. Sutton’s opinion minimizes the pain of that exclusion, and it treats far too lightly the history of homophobia in Western society. Persecution of gays and lesbians does not, as he implies, run back to Stonewall and Anita Bryant, nor is it, as he suggests, in some way independent of the definition of marriage. In fact, it dates back as far as Leviticus—that is, as far back as marriage itself—and the two are intimately joined.
A former clerk to Justice Antonin Scalia, Sutton makes no citation to Scalia’s furious dissent in Windsor. Like a dutiful nephew ignoring a favored uncle’s intemperate outburst, he calmly tries to get those at the table to lower their voices.
But though his voice is calm, it returns this contentious issue to the Supreme Court, which may now have to decide the plaintiffs’ appeal by June. A few days ago, the justices seemed to be dreaming of a term of small ball—cases about fish-shredding, broken taillights, and teeth whitening. That dream probably disappeared Friday.