Marriage equality has had a very good run in the federal courts ever since the Supreme Court declared the anti-gay Defense of Marriage Act unconstitutional in 2013. Every single federal court to consider the question has sided with marriage equality, although two federal appellate judges have dissented from this consensus view in the United States Courts of Appeals for the Fourth and the Tenth Circuits.
Nevertheless, equality is likely to face more skeptical judges as more of these cases advance to the court of appeals level. As ThinkProgress warned last June, “appointments to federal circuit courts have historically been much more politically charged than appointments to the lower-ranking district courts, so litigants are far more likely to encounter a judge who was selected for their loyalty to a particular ideology.” We also predicted that the Sixth Circuit, with a strong Republican majority and a history of partisan acrimony, was especially likely to treat a marriage equality case with skepticism.
Next Wednesday, a three-judge panel of the Sixth Circuit will convene in Cincinnati to hear several marriage equality cases arising out of Michigan, Ohio, Kentucky and Tennessee — and the GOP-dominated panel that will hear these cases is unlikely to bring joy into the hearts of equality’s supporters.
Judge Deborah Cook is a George W. Bush-appointee and a fairly doctrinaire conservative who is unlikely to break with her party on this high-profile issue. She will be joined on the panel by Judge Martha Craig Daughtrey, a Clinton-appointee who is likely to side with marriage equality.
To the extent that there is a wild card on the panel, it is Judge Jeffrey Sutton. Prior to becoming a judge, Sutton was a brilliant — and very conservative — litigator who devoted much of his career to cases seeking to expand the role of the states at the federal government’s expense. He also helped lead the conservative Federalist Society’s Federalism and Separation of Powers practice group. Sutton was widely expected to be a reliable conservative vote when he joined the bench, and for most of his time as a judge, he has been.
Except that there was this one case . . . .
In Thomas More Law Center v. Obama, Sutton surprised many court watchers by rejecting a constitutional challenge to the Affordable Care Act. Though Sutton appeared sympathetic to some of the policy arguments that Obamacare reached too far, he rejected the argument that it is the judiciary’s job to reward conservative unease with health reform by striking down the law. “Not every intrusive law is an unconstitutionally intrusive law,” Judge Sutton wrote. “And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the [anti-Obamacare plaintiffs’ legal theory] does not work with respect to health insurance in many settings, if any of them.”
So, when the Sixth Circuit panel convenes on Wednesday, it’s possible that lightning will strike once again and Sutton will break with his party and his fellow conservatives to support marriage equality. The smart money, however, would bet against such a second strike.
The most likely explanation for Sutton’s vote in Thomas More is that he believes in a kind of conservatism which teaches that judges should be restrained and that lawmaking should be left to people’s elected representatives. Indeed, this view of the proper role of the judiciary was the dominant view among conservatives until President Obama took office, and it was woven tightly into the rhetoric of presidents like Ronald Reagan and George W. Bush. Though this vision is now very much in decline, as conservative lawyers are increasingly keen to use the courts as a vehicle to thwart liberalism, Sutton did receive his lifetime appointment to the bench at a time when conservative cries for judicial restraint were ascendant.
Indeed, Sutton’s own opinion in Thomas More suggests that he was motivated much more by a fear of judicial overreach than by a sudden conversion to liberalism. The final line of his opinion was: “Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.”
The same instinct that led Sutton to pen this line, however, also would make him unlikely to use his own judicial power to upset a state’s policy of marriage discrimination. Lightning could strike a second time in Judge Sutton’s chambers, but he remains a very likely vote in favor of discrimination. And that means that the Sixth Circuit is likely to be the very first court in the country to side against equality since the Supreme Court struck down DOMA.