Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
The picture comes from this guy's Twitter, where there has been a "waiting for Sutton" watch for quite some time. SCOTUSBlog summarizes the majority nicely though we can look elsewhere for more color commentary.
The dissent found the opposite view so "obvious" that she suggested Judge Sutton (Federalist Society up and comer with rational cred given he upheld ACA) joined by some other conservative (though votes supporting SSM has come from various presidents' appointees & a Carter appointed voted against it) was aiming for a circuit split. She even suggested, could have did without this, at the end that the majority didn't properly honor its oath to protect constitutional rights.
Strong differences doesn't mean lack of respect of oaths. It can mean a certain blindness. So, how does Sutton do? Some of that was there. As the dissent noted, the majority opinion did sound like “an introductory lecture in political philosophy,” though a somewhat pompous tone was generally acceptable to many when the 7CA was involved. The 4CA was mostly a straightforward approach. The 10CA had some more meat. This one had some style, but overall read like a too smart for its own good graduate school essay at times, one that simply did not address key points.
It is overall somewhat better than the Puerto Rico ruling that just went off the rails after its "we are bound by Baker" beginning. Sutton could have done with more minimalism. The idea that Baker v. Nelson is so dead that it only "lacks only a stake through its heart" is fairly obvious by now. But, fine, the Supreme Court might have gave Griswold broad application to the unmarried, greatly expanded gender equality and recognized homosexuals should have basic rights like the rest of the population. It never nailed that stake. That's almost credible to feel bound, but best to say little else.
When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers... Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.
There is a lot of this sort of thing while the deck is stacked against gays and lesbians. It is noted that by the time of Lawrence, only eleven or so states still had such anti-sodomy laws on the books. Marriage is still developing here. But, later Turner v. Safley (without citing the long paragraph that explains the various reasons marriage is protected, better to suggest it is "rational" -- in a "think about the children, Justice Kennedy" extended section near the beginning of the dissent, the speciousness of this was underlined -- to deny SSM since marriage is about one thing) is cited and "strains credulity" that a year later a same sex marriage claim would win. Yes, since that was right after Bowers was decided. Still, even before then, Justice Powell in the other case cited worried the strictness of the Court's protection of the right to marry would do away with bans involving gays.
A lot of water under the bridge since the mid-1980s. Lawrence v. Texas brought -- unlike in the days of Baker v. Nelson -- gays within the ambit of privacy decisions that Bowers felt was "specious." We are told "not a single" justice has written anything that challenges "traditional marriage" and the path argued for here would greatly expand congressional power to enforce rights against state action in this context. The dissent cites coverture and a long passage in a recent concurrence showing how various aspects of marriage "traditionally" honored is now seen as unconstitutional.
There is just too much spin and preaching in the opinion. The "only" way to explain Windsor is federalism, even if the concern was Romer level animus. The truth is that state control (up to a point) in marriage was an aspect of the ruling. It is a "guessing game" to say Baker v. Nelson is no longer binding. A citation of marriage as "fundamental to our very existence and survival" shows "marriage" was assumed to be opposite sex marriage since apparently that must only mean "procreation" though it is also seen as essential for those who don't conceive.
The dissent basically noted that it isn't really necessary to say anything new at this point since the general reasons why SSM should be protected, including the irrational basis of the "what about the children" rationale (see 7th Cir.) has been covered by various opinions by now. The majority has an tired feel too. Schuette is cited to support democratic decision-making, though there we are dealing with something presumptively allowed (doing away with affirmative action), not the question itself at issue. We even have "what about polygamy," which apparently the claimants have no answer -- since many have explained what is different, b.s. again.
There are novel touches. Discrimination against gays and lesbians is readily admitted, but that doesn't mean on this issue in particular there is need for heightened scrutiny. A sort of "on some issues" test for standards of review? Also, "traditional marriage" rules grew outside of that, as if ancient beliefs as to gender and sex roles, including the standard biases etc. did not develop within the same overall context. And, though we are talking about a range of benefits here, quoting one party, apparently "dignity" is the real issue here. Better to get that from an emerging consensus than the courts.
The dissent notes that "animus" is not mere ill will and malice (the majority might not want to find that here, but to me a true accounting would show it), but the lack of a legitimate purpose, one not based on relevant legitimate facts which doesn't properly respect some group on a constitutional level. That is found here, including constitutional amendments (she notes how hard they are to override, putting aside the limits of majority rule) that go beyond the usual traditional practice of letting marriage rules develop by normal legislative practice. The "usualness" of the amendments were seen by the majority by nose-counting, not by how as whole the states were singling out a group -- sort of like legitimizing prejudice by force of numbers. Fear of the courts pushing change cannot be the only answer. Great changes, including as applid to marriage, was trusted to normal legislative action. Why not here?
The wait to release a decision that some felt was due like last month or so probably was to let the elections pass (USSC cert. denials of other circuits plus the 9CA ruling underlined it was time to release before now and they heard oral arguments long enough ago) and there was no split decision here. No suggestion that civil unions or domestic partnerships would be necessary or at some point classifications become unreasonable because of a sort of half-ass half of a loaf policy. For instance, to quote the dissent, "Michigan statutes allow married couples and single persons to adopt, those laws preclude unmarried couples from adopting each other’s children." A major reason why Baker v. Nelson isn't the end point -- the "question" has changed. "Animus" (barely a thing then) et. al. had to be covered anyway, but the exact same question is not at issue. And, that is what has to be for a denial for lack of substantial question to count, even putting aside the clear changing doctrinal developments. No guesswork necessary.
It's not surprising that both SSM and recognition of SSM of other states was rejected though there has been some argument that existing marriages provide an easier case. The traditional rule is that states don't have to recognize marriages they themselves don't. But, what of those who selectively target SSM here? Take Ohio here -- they don't recognize first cousin marriages, but recognize them over SSM. The majority held that "incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited” marriages are covered here and SSM counts. Fine company! Lawrence suggests "shocking to good morals" can't be the reason, so it has to be "well defined public policy," but selective rights for same sex couples challenges how "well defined" it really is. Sutton doesn't try to go mano-o-mano (probably smartly) with Judge Posner here. We are left with a weak "wait and see" ground.
The couples can seek out en banc and it is not clear how that would fare -- the 9CA is often a target of potshots, but the 6CA is a bit of a joker circuit too. But, advocates pushed SCOTUS to hear the cases without a circuit split on the core issue and apparently they want [update:less clear perhaps] them to hear this one as soon as possible too. As the dissent did with an allusion to Martin Luther King Jr.'s letter, they think the time for waiting is over. Well, a circuit split was bound to happen eventually. Amazing only two rulings against before this one as it is. Let's hope Sutton is on the "wrong" side again.
Bit of a bummer week. And, Mark Sanchez led the Eagles to victory too! Well, that is a bit off topic, but still for any Jets fans.