[Earlier posts in this symposium include contributions from: Robin Wilson, Bill Eskridge,  Scott Michelman, Neil Siegel, and Suzanne Goldberg.]

Dale Carpenter is the Earl R. Larson Professor of Civil Rights and Civil Liberties Law at the University of Minnesota. 

Two months to the day after the Sixth Circuit heard oral argument in challenges to the marriage laws of four states, the Supreme Court turned up the heat a notch by denying cert. petitions in seven same-sex marriage cases. The judge sitting in the middle of the Sixth Circuit panel on August 6 was Jeffrey Sutton, a careful and smart conservative jurist appointed by President George W. Bush and confirmed by the Senate in 2003. He is widely seen as the swing vote on the panel, with one judge a likely vote to strike down the state bans on same-sex marriage (Martha Craig Daughtrey) and one judge likely to uphold them (Debra L. Cook). The next step in the controversy over same-sex marriage likely depends on Sutton, who faces a trilemma.

There’s a lot of speculation, but we don’t know for sure why at least six Justices of the Supreme Court refused to hear the marriage cases from Virginia, Utah, Oklahoma, Wisconsin, and Indiana. Justice Ruth Bader Ginsburg’s remarks at the University of Minnesota Law School last month suggested that until there’s a circuit split, the Justices may believe there’s no urgency” for the Court to consider the matter. The upshot is that, according to UCLA’s Williams Institute, over the next three years there are likely to be 45,000 same-sex marriages in the eleven states covered by the three circuits whose pro-SSM decisions were allowed to stand. This will increase the number of same-sex marriages in the U.S. by almost fifty percent.

The Sixth Circuit, depending on Sutton’s vote, could be the court to create the urgency that causes the Supreme Court to hear the matter sooner (perhaps still this Term) rather than later. Sutton and his colleagues appear to face three basic choices with different consequences for possible review in the Supreme Court.

(1) Affirm the decisions supporting gay marriage in the district courts in Ohio, Kentucky, Michigan, and Tennessee.

If the Sixth Circuit does this, gay marriage would be legal in Kentucky and Tennessee, and the states of Ohio and Michigan would have to recognize same-sex marriages from out of state. One or more of the states might simply acquiesce to the decisions, as other states have done when further appeal became fruitless. If the states petitioned the Court, it would likely deny their petitions since there would still be no circuit split. It also seems likely that stays on the lower-court decisions would be immediately or very quickly lifted since the stays had functioned only to preserve a status quo that the Supreme Court has now let pass.

The Sixth Circuit would thus avoid pushing the issue onto the Supreme Court where, barring a change in composition, a same-sex marriage claim is very likely to prevail eventually on some grounds. I say “very likely” because, as Ed Whelan put it at NRO, “it is difficult to imagine that the Court would let the current judgments against marriage go permanently into effect in those [eleven] states and then rule in cases from other states that there is no constitutional SSM right.”

The onus would then fall on the Fifth, Eighth, or Eleventh Circuits to reject same-sex marriage claims. Any of them would have to be considered more likely to uphold SSM bans than the circuits that have decided the matter thus far. But given that oral argument has not been scheduled in the Fifth Circuit, that briefs have not yet been filed in the Eleventh Circuit, and that there is not even a case before the Eighth Circuit, a decision from one of them would probably put the matter off for at least another Term.

(2) Reverse the decisions supporting gay marriage in the district courts.

This would create a circuit split, practically guaranteeing review in the Supreme Court.

But what would be the basis for a reversal? The Sixth Circuit could write a decision rebutting the numerous constitutional grounds for same-sex marriage, including equal protection and due process. It could try to explain why encouraging opposite-sex couples to procreate responsibly depends on excluding same-sex couples from marriage. It could try to clarify why children are best raised in homes where their parents are married while the parents of their best friends are not. It could hold that despite a history of horrendous and invidious discrimination the courts should not view anti-gay discrimination with any special suspicion.

More likely, at least until yesterday, is that the Sixth Circuit would rule that the Supreme Court decided the matter forty-two years ago when it summarily denied an appeal from Minnesota rejecting constitutional claims for same-sex marriage. Under this approach, the Sixth Circuit would consider itself bound by the one-sentence order in 1972’s Baker v. Nelson dismissing the appeal for want of a substantial federal question.

The main argument against that view has been that significant doctrinal changes in the intervening four decades, including several major Supreme Court decisions, have eroded the precedential authority of Baker. At oral argument, Sutton suggested that he thought things were a bit murky, but that lower courts were probably still bound by it. If that’s the basis for his opinion, it could actually be a quite brief decision dismissing the claims as precluded by Baker. If Baker controls – a conclusion all of the other federal courts have rejected since Windsor – then the Sixth Circuit is bound by it.

Whatever its merits the day before yesterday, such a constitutional TKO of same-sex marriage is now even harder to accept. While a denial of certiorari formally sets no precedent on the merits, it’s very hard to see how the Court could have let stand without comment three court of appeals decisions so at odds with its presumably clear guidance of forty-two years. If Baker really still controlled, the Court could have issued a one-sentence reversal of the decisions from the Fourth, Seventh, and Tenth Circuits. It must be that the substantive constitutional law has changed enough that the matter is at least open to question in the lower courts. It’s hard to imagine even one Justice on the Supreme Court, whatever his or her position on the merits, chiding an appeals court for ignoring the supposedly binding precedent of Baker.

As hard as it might be to write an opinion rejecting same-sex marriage claims on the merits, such an opinion might at least get points for honesty from those on the other side. An attempt simply to side-step the issue now would be too cute and too transparent as a dodge. It would invite derision, if not ridicule. Yesterday’s cert. denials reduce the likelihood of a Sixth Circuit decision based on Baker.

Either way – rebuffing same-sex-marriage arguments on the merits or issuing a TKO and punting to the Supreme Court – would mean reversing the lower-court decisions, inviting quick review from the Supreme Court, and, if I’m right about the ultimate outcome, drawing a major reversal in a historic case. If that’s where a judge’s constitutional principles lead him that’s what he should do, but he must know such a decision would frame his judicial legacy.

(3)

Do nothing. There’s no deadline on issuing a decision. The Sixth Circuit could simply sit on the matter until another court, say the Fifth Circuit, issues an opinion rejecting same-sex marriage.

That would take the pressure off but it’s not a very admirable course. I doubt Judge Sutton will want to delay a decision just to avoid the controversy. He was the first Republican appointee, after all, to rule in favor of the individual mandate imposed by the Affordable Care Act.

At the conclusion of oral argument, Sutton promised a decision “soon.” The facts aren’t in dispute and the legal arguments, while momentous, are not new. The delay isn’t yet unseemly. While Judge Richard Posner needed only nine days to issue his gay-marriage decision for the Seventh Circuit, both the Fourth and Tenth Circuits took two-and-a-half months. I don’t think we’ll be waiting much longer for a ruling from the Sixth Circuit, whatever that ruling is.

If the Sixth Circuit defies initial expectations and affirms the lower-court decisions, you can add four more states to the growing gay-marriage list. The ball would then be in the Fifth Circuit’s court. If the Sixth Circuit does as expected and reverses the lower-court decisions, we could still be looking at a Supreme Court showdown by the end of this Term, despite all the excitement generated on Monday.

Posted in Same-Sex Marriage Post-Windsor

Recommended Citation: Dale Carpenter, Symposium: Judge Sutton’s trilemma, SCOTUSblog (Oct. 7, 2014, 4:16 PM), http://www.scotusblog.com/2014/10/symposium-judge-suttons-trilemma/