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Symposium: Cert. grant signals promising vehicle to affirm marriage

Austin Nimocks is Senior Counsel at Alliance Defending Freedom.

The people of every state should remain free to affirm marriage as the union of a man and a woman in their laws. Therefore, it is no surprise that the Supreme Court on Friday chose to accept review of the Sixth Circuit’s marriage ruling, authored by Judge Jeffrey Sutton. Indeed, the Sixth Circuit gave the Supreme Court the opportunity to affirm what states across the country did in preserving the longstanding definition of marriage in their state constitutions.

Many will speculate on why the Supreme Court decided to address the Sixth Circuit’s decision instead of granting review in one of the many other similar cases presented to it. We may never know, but it is clear that the Supreme Court was waiting for the right case – an opinion worth addressing. We know that Supreme Court practice largely revolves around what practitioners call a “proper vehicle.” Whether one case or another is a “proper vehicle” can be debated, but one thing that can be agreed upon is that the Supreme Court believes that the Sixth Circuit case is, indeed, the “proper vehicle.”

Unlike much of the judicial overreaching employed regarding same-sex marriage, the Sixth Circuit employed a fresh approach, stepping back from the controversy of whether we should have same-sex marriage and instead focusing on its limited role as a federal court.

Despite common misperceptions, marriage cases are NOT about whether same-sex marriage is a good idea or should become policy. That is a question for the people to decide for themselves. As Judge Sutton stated,

Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee.


And instead of taking a case where the Supreme Court must undo a judicial overreach, the Sixth Circuit’s decision provides the Supreme Court with a unique opportunity to affirm.

Here, the Supreme Court should affirm the people’s freedom to debate this issue of marriage as a community. And Judge Sutton’s opinion gives the Supreme Court an excellent vehicle through which to do so because it affirms the basic, fundamental truth that the Constitution does not impose a particular view of marriage upon all Americans.

If recent Supreme Court decisions tell us anything, it is that Americans will maintain control over this issue. Just last year, in the Schuette v. BAMN case, a case about the voters’ freedom to address the issue of race relations, Justice Kennedy concluded that “[d]eliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate. . . . It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” And if the voters are capable of deciding one of the most controversial issues in our country’s history – race relations – are we really to assume that the Supreme Court does not believe them to be capable of deciding questions about marriage on “decent and rational grounds”?

And it is this fact that continues to escape many pundits when marriage litigation is discussed – that these cases are about process, not policy. And this is why review of the Sixth Circuit decision provides an ideal opportunity for the Supreme Court to affirm. It is the first federal circuit court to properly aim its judicial focus. Rather than opining on what the answer should be, it followed Schuette regarding who gets to decide, and how that decision is made.

Also significant is the Sixth Circuit’s correct understanding of the Supreme Court’s recent decision in United States v. Windsor. The misapplication of Windsor has largely been rampant until Judge Sutton’s opinion, with a few exceptions. As the Sixth Circuit observed, Windsor was only about the federal government’s “unprecedented intrusion into the States’ authority over domestic relations.” Windsor was not about whether the states possess that authority – they do. Rather, the federal government erred in its “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage.”

Judge Sutton also noted something about Windsor that most courts have ignored – the Supreme Court’s unambiguous conclusion. At the very end of Windsor, Justice Kennedy confined the Court’s “holding” and “opinion” to the unique situation where the federal government declines to recognize “same-sex marriages made lawful by the State.” Thus, Windsor doesn’t mandate same-sex marriage in every state, but does require the federal government to honor the marriages of those residing in same-sex marriage states. That a federal court of appeals finally acknowledged this express limitation, and took it seriously, makes the Sixth Circuit case ripe for affirmance.

In addition, Judge Sutton’s opinion is the first by a federal court of appeals that appropriately addressed the remainder of the triumvirate of Romer v. Evans, Lawrence v. Texas, and Windsor. These three cases are oftentimes cited as the crux of arguments made for constitutionalizing same-sex marriage, but typically the proponents of those arguments do so without acknowledging the express limitations of those cases.

In striking down as unconstitutional Texas’s sodomy law in Lawrence, Justice Kennedy made another express reservation – that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” And in Romer, it was the novelty of a sweeping law never before seen that led to its demise.

But laws defining marriage as the union of one man and one woman are nothing new. When voters across the country placed that definition of marriage into their state constitutions, the definition of marriage did not change by their vote. In other words, they didn’t do anything new or pass anything unprecedented. The voters’ decision to constitutionalize marriage merely placed it beyond the reach of their state judiciary – nothing more.

Another good reason to review Judge Sutton’s opinion is how he aptly addresses both Loving v. Virginia and Baker v. Nelson. In Loving, the Supreme Court struck down Virginia’s miscegenation law that precluded whites from marrying anyone of color. Though about thirty-seven states once had these laws, many were legislatively repealed and Virginia’s law was one of just sixteen remaining at the time.

Many courts have found that the Loving case furthers constitutional claims for same-sex marriage. But if it did, the Supreme Court would not have dismissed the same-sex marriage claim in Baker v. Nelson just five years after deciding Loving. In Baker, the Supreme Court summarily dismissed a constitutional challenge to Minnesota’s marriage laws. This was a ruling on the merits that the Supreme Court has made clear that lower courts are “not free to disregard” until such time as the Supreme Court itself informs them that they are not.

Judge Sutton acknowledged not only the inescapable chronology of Loving and Baker, but also that the Supreme Court has never pronounced that its ruling in Baker no longer applies. While some mistakenly contend that certain “doctrinal developments” have undermined Baker’s applicability, Judge Sutton recognized that the Supreme Court is the sole arbiter of its own precedent.

Regardless of how one may feel about the debate over marriage, judicial review is about how the debate is to be handled and not about judges picking which view they prefer. Historically, we’ve experienced the difficulties associated with the Supreme Court imposing too heavy a hand upon important issues. In Dred Scott, for example, the Supreme Court decided that the Constitution essentially established a right to own slaves. The people responded with the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments. In Roe v. Wade, the Supreme Court concluded that the Constitution bestowed a right to take innocent human life. Yet from the outset, that decision has been fraught with controversy and questioned by numerous Justices and judges (even those who are sympathetic to the outcome). Of course, the policy choice embodied in Roe is today widely disfavored as a majority of Americans hold pro-life views.

If we’ve learned anything from history it is that the Supreme Court does not function well as a super-legislature that decides our country’s most important policies. The Sixth Circuit’s judicious focus on the process, instead of the answer, inserted a fresh breath into the judicial air regarding our country’s debate on marriage. And for the Supreme Court, the Sixth Circuit’s decision finally gives it a great vehicle to reaffirm, once and for all, the longstanding principle it acknowledged in Schuette – that the marriage debate belongs to the people, and not the courts.

Recommended Citation: Austin Nimocks, Symposium: Cert. grant signals promising vehicle to affirm marriage, SCOTUSblog (Jan. 16, 2015, 3:31 PM),