In his opinion yesterday affirming the constitutionality of gay marriage bans in the states of Ohio, Michigan, Kentucky, and Tennessee, Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit invoked the principles of judicial deference. "When the courts do not let the people resolve new social issues like this one," Sutton wrote, "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." In other words, Judge Sutton told the gay marriage movement to make its case on election day, not inside a federal courtroom.
Judge Sutton, a former clerk to Supreme Court Justice Antonin Scalia and a prominent jurist in Federalist Society circles, has made this sort of argument before. Most notably, Judge Sutton embraced judicial deference in July 2011 when he became the first Republican-appointed federal judge to vote in favor of the constitutionality of the Patient Protection and Affordable Care Act's individual mandate. "Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation," Sutton observed, "allowing the peoples' political representatives, rather than their judges, to have the primary say over its utility."
That pro-Obamacare decision earned Sutton a loud round of applause from the American left. The liberal pundit Matthew Yglesias, for example, writing at the left-wing site Think Progress, hailed Sutton's decision as a definitive vote in favor of the contested legislation. "His voice here not only confirms the constitutionality of the law, but the obvious constitutionality of the law," Yglesias asserted.
Well, Judge Sutton has raised his voice once again in order to weigh in a legal matter of pressing national importance. Do liberals like Yglesias still think that voice confirms "the obvious constitutionality" of the laws in question?
Judge Sutton, to his credit, is an eloquent and principled proponent of judicial deference. He stuck to his guns in the Obamacare case, even though it he knew it would cause him to face harsh criticism from his usual allies and admirers in the conservative legal movement. Now we'll see if Sutton's liberal admirers from 2011 demonstrate a comparable adhesion to principle in 2014.