Gay marriage's next big test

Peter Sprigg is Senior Fellow for Policy Studies at Family Research Council. This article appeared in The Detroit News on August 11, 2014.

"Isn't the bigger point . . . that it disparages the voters-the votes of citizens of Michigan?"

That question was directed at Michigan Solicitor General Aaron Lindstrom last week during oral arguments over a lawsuit challenging the constitutionality of the Michigan Marriage Amendment (MMA). With it, federal judge Deborah L. Cook may have signaled that the year-long judicial winning streak for advocates of redefining marriage (since the U.S. Supreme Court struck down a law defining marriage for federal purposes last year) will soon come to an end. Attorney Carole Stanyar, who represented the plaintiffs challenging the amendment, spoke of the plight of same-sex couples denied civil marriage. Cook, however, appeared to agree with Lindstrom that the real issue is, in a democratic society, "Who gets to decide?"

Cook, a George W. Bush appointee, is part of a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, which heard arguments in Cincinnati yesterday on six lawsuits (from four states-Michigan, Ohio, Kentucky, and Tennessee) seeking to establish a constitutional right to same-sex marriage, or to legal recognition of another state's same-sex marriages. The panel also included fellow Bush appointee Jeffrey S. Sutton, and Clinton appointee Martha Craig Daughtrey.

Michigan's case, DeBoer v. Snyder, was the first one heard, and it set the tone for the three hours of arguments. The political party of the president who appointed each judge has not always been a reliable predictor of how they will vote. Judge Bernard A. Friedman, the District Court judge who in March ruled against Michigan's amendment defining marriage as the union of one man and one woman, was a Reagan appointee.

In arguments last week, Judge Martha Daughtrey, a Clinton appointee, made little secret of her scorn for the marriage amendment, and did not seem inclined to defer to judicial precedent, either. ("We [judges] are sometimes capable of blindly applying cases," she lamented.)

Initial news reports said that Sutton's questions suggested ambiguity in his position. In the hearing on the Michigan case, I had the opposite impression. A key legal issue in these cases is what standard of review should apply to the classification that distinguishes opposite-sex and same-sex couples with respect to marriage. Sutton repeatedly pointed out that no Supreme Court precedent has ever declared (and Sixth Circuit precedents have explicitly denied) that classifications based on "sexual orientation" should be subject to anything more than "rational basis review." That is the most deferential standard, requiring a law to be upheld if there is any conceivable rational basis for it.

Sutton even pressed the issue of the precedential value of Baker v. Nelson-the first same-sex marriage case in the United States, in which the Minnesota Supreme Court upheld a one-man-one-woman marriage definition in 1971. A year later, the U.S. Supreme Court dismissed the appeal in one sentence "for want of [a] substantial federal question." Even without a written opinion, this type of dismissal is considered a ruling on the merits. While both Stanyar and Judge Daughtrey insisted that subsequent "doctrinal developments" had undermined Baker, Sutton said that is a decision for the Supreme Court-not lower courts like theirs.

Stanyar and Daughtrey placed great emphasis on the 1967 case of Loving v. Virginia, in which the Supreme Court struck down bans on interracial marriage. Stanyar argued that Loving stood for the proposition that the "fundamental right to marry" necessarily includes the right to marry "the person of your own choice." Lindstrom, however, insisted that Loving was based specifically on the Fourteenth Amendment's ban on racial classifications. He pointed out that Baker was decided after Loving, and the Minnesota Supreme Court had explicitly rejected the Loving analogy. Judge Sutton made the absurdity of the plaintiffs' reliance on Loving clear by asking, "That's a '67 decision. So in 1968, say, a gay Caucasian man and a gay African American man go to Virginia to seek a license to marry. Do you really think Loving controls that case in 1968?"

Sutton, it should be noted, did not seem particularly troubled by redefining marriage as a policy matter-only as a constitutional one. Playing devil's advocate to Lindstrom, he noted that "modern conceptions of marriage are more about love, affection, and commitment" than about procreation-the public purpose behind the marriage laws cited by Lindstrom. However, noting Stanyar's desire for same-sex couples to obtain "respect" and "dignity," Sutton said, "I would have thought the best way to get respect and dignity is through the democratic process."

Lindstrom noted that striking down the Michigan Marriage Amendment under "rational basis" would require a finding that not one of the 2.7 million citizens of Michigan who voted for it in 2004 had a single rational reason for doing so. The Sixth Circuit panel seems unlikely to adopt this absurd conclusion.