Judge Jeffrey Sutton

Some of us seem to be suffering from amnesia. In early August, after oral arguments, there was a general sense that the Sixth Circuit Court of Appeals would reverse the lower courts — ruling in favor of marriage discrimination. The only surprise for me was the amount of time they required to do so. In oral argument, it was clear that the ruling would rest on the decision of Judge Jeffrey Sutton.

Sutton was a very conservative lawyer who once clerked for Justice Scalia. He was appointed to the bench by George W. Bush. During oral arguments, Sutton repeatedly asked why the plaintiffs didn’t go through the process of winning over the electorate and obtaining same-sex marriage recognition through the ballot.

About the only surprise in the opinion is that the judges bothered to address the merits because they never really got there. They claimed to be barred by precedent.

In 1971, after being denied recognition of their marriage by the Minnesota Supreme Court, Richard Baker and James McConnell appealed to the United States Supreme Court. The Court rejected
their challenge in 1972, issuing a one-line order stating that
the appeal did not raise
“a substantial federal
question.” The first finding of the Sixth Circuit in the marriage cases was that Baker v. Nelson was controlling.

The judges assert that they cannot ignore Baker as precedent regardless of doctrinal developments and that only the United States Supreme Court has the power to do so. Undoubtedly, that will be the first issue that lawyers will have to argue before the Supreme Court. If they act quickly enough the Court may hear the case in this session.

As Judge Martha Craig Daughtrey writes in dissent:

… as an appellate court decision, it
wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s
constitutional prohibition of same-sex marriage violates
equal protection under the Fourteenth
Amendment. Instead, the majority sets up a false premise — that the question before us is “who
should decide?” — and leads us through a largely irrelevant discourse on democracy and

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.