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.