Judge Sutton’s Loving Problem

In this commentary, Doug Kendall and Brianne Gorod from the Constitutional Accountability Center argue Judge Jeffrey Sutton’s recent opinion about same-sex marriage challenges a landmark Supreme Court case.

SupremeCourt_insideEarlier this month, Judge Jeffrey Sutton of the Sixth Circuit Court of Appeals became the first federal appellate judge to write an opinion upholding a state ban on same-sex marriage since United States v. Windsor, the Supreme Court case that invalidated the provision of federal law that defined marriage as the union of a man and a woman. There are a lot of problems with Judge Sutton’s opinion, but one in particular makes clear why his decision can’t stand when the Supreme Court ultimately rules on marriage equality: If Jeff Sutton is right, Loving v. Virginia is wrong.

There are few Supreme Court cases that are as universally celebrated today as Loving v. Virginia, the 1967 decision that held that state laws banning interracial marriage were unconstitutional. In Loving, the Court recognized that “[m]arriage is one of the ‘basic civil rights of man,’” and “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Thus, the Court held unequivocally that “[t]o deny this fundamental freedom” on racial grounds violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

It’s difficult to read Loving as anything other than a strong endorsement of a broad right to marriage equality in the Constitution. The Fourth Circuit, for example, relied in large part on Loving to conclude that “the Supreme Court has demonstrated that the right to marry is an expansive liberty interest,” and it noted that Loving and other Supreme Court cases “speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.” The Seventh Circuit, in an opinion written by Judge Posner, noted that Wisconsin’s argument that tradition supported its ban on same-sex marriage “runs head on into Loving.”

Yet Judge Sutton treats Loving as a museum piece—an interesting historical artifact from the twentieth-century—rather than a binding precedent of the U.S. Supreme Court that can be trusted to guide his decisionmaking in the twenty-first century. Indeed, in a 42 page opinion, Sutton dismisses Loving in barely more than a page. He acknowledges that Loving held that “‘marriage’ amounts to a fundamental right,” but nonetheless concludes that “the right to marry in general . . . nowhere appear[s] in the Constitution.” Apparently to Sutton, the right to marry is fundamental, but not to be trusted. Sutton continues by declaring that when the Court decided Loving, “marriage” was understood to be between a man and a woman, and “Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage.” It did not, he writes, “create a new definition of marriage,” and so it is wrong to “transform the fundamental-rights definition of Loving under the old definition into a constitutional right under the new definition.” But given the history of anti-miscegenation in this country, it could also have been said that before Loving, the definition of marriage was limited to a man and woman of the same race, and Loving changed that definition. Sutton’s analysis amounts to a roundabout way of saying that although Loving does recognize that “the right to marry” exists in the Constitution, he just doesn’t think it’s a right that should be enjoyed by same-sex couples.

His cursory analysis doesn’t stop at binding precedent, it also extends to the Constitution itself. To start, Judge Sutton dismisses the text of the Equal Protection Clause as “generally worded.” But the Equal Protection Clause is not “generally worded,” it is broadly worded. Judge Sutton prefers not to see it as such only because he doesn’t want to grapple with the implications of the amendment’s broad scope. According to Sutton, there is no challenge in applying the Equal Protection Clause to the issue of same-sex marriage because “[n]obody . . . argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.” But nobody argues that because virtually nobody (other than Judge Sutton) thinks that’s the proper way to approach constitutional interpretation. The brand of originalism that Judge Sutton advances in his opinion—that is, asking only how the Framers of the constitutional provision intended it to apply—has been almost universally rejected even by his fellow conservatives; instead, the question is what the language of the Constitution actually means. Judge Sutton doesn’t engage with that question at all, but if he had, he would have realized that the Equal Protection Clause’s sweeping guarantee of equality prohibits state bans on same-sex marriage.

After all, when it comes to understanding the original meaning of the Fourteenth Amendment, the history of its drafting and ratification makes clear what its text suggests: it broadly guarantees equality to “any person” residing within the jurisdiction of the United States, and this broad equality guarantee thus protects all persons, regardless of race, gender, age, or sexual orientation. Significantly, when the Fourteenth Amendment was adopted, the Framers sought to guarantee to the newly freed slaves the right to marry that they had long been denied, thereby confirming that the right to marry was understood to be a basic civil right of all persons. There can thus be no question that laws that deny to members of certain groups the right to marry the person of their choice contravene the original meaning of the Fourteenth Amendment. Judge Sutton doesn’t recognize this only because he dismisses the text as too general to guide him, and he doesn’t engage with the history of the Fourteenth Amendment at all. If he had, he would have realized what the Court did in Loving: the right to marry the person of one’s choice is a fundamental right protected by the Fourteenth Amendment.

It’s particularly ironic that Judge Sutton was willing to give so little deference to Loving given that he was willing to defer to the Supreme Court’s one-line order in Baker v. Nelson, which dismissed “for want of a substantial federal question” an appeal from a state court decision upholding a same sex marriage ban. As Judge Posner noted in the Seventh Circuit’s marriage equality case, Supreme Court precedent no longer binds lower courts when there have been intervening changes in the doctrine, and “Baker was decided in 1972—42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned.” Tellingly, none of the countless federal judges from across the ideological spectrum who have struck down same-sex marriage bans since Windsor believed Baker barred their decision.

It’s disheartening that Judge Sutton was so willing to follow the essentially defunct Baker and so unwilling to follow the still vibrant Loving. Because if Loving is right, Jeff Sutton is wrong.

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