Gay Marriage

Citing Judicial Deference to Legislators, Federal Judge Upholds Obamacare in 2011, Gay Marriage Bans in 2014

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Courtesy of the U.S. Court of Appeals for the 6th Circuit

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.

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  1. Judicial deference should be the norm, unless the Constitution is being violated in some way. Now, I think that Obamacare does violate the Constitution, but that is a hard sell in a post-New Deal world where a series of blatantly un-Constitutional power grabs by FDR have become de facto part of the Constitutional arrangement (if not de jure).

  2. Judge Sutton, to his credit, is an eloquent and principled proponent of judicial deference.

    Then he’s an eloquent proponent of bootlicking who ignores all of the Constitution except Article II and parts of Article I.

  3. “Judge Sutton told the gay marriage movement to make its case on election day, not inside a federal courtroom.”

    Well, let’s hope he doesn’t try to turn any of our other rights into a popularity contest.

    My Second Amendment rights aren’t a popularity contest, and a gay person’s right to the equal protection of the laws isn’t a popularity contest either–no matter what any judge says.

    1. My Second Amendment rights aren’t a popularity contest, and a gay person’s right to the equal protection of the laws isn’t a popularity contest either–no matter what any judge says.

      When Tony started babbling about majority rule, and I asked him how he reconciled that with gay people’s right to equal protection of the laws, he evaded the question.

      1. This is exactly Tony’s logic on the issue.

        Because our rights only exist because government says so, they can only exist if people vote for them. And we libertarians and our silly little ideas about how we have rights that exist apart from whether the government recognizes them–we’re just being silly. Believing in things that don’t really exist!

        So, yeah, Tony must be thrilled with this ruling!

        …despite being gay himself.

        I’m sure, Tony is–no joke–thrilled with this ruling specifically becasue he’s gay himself. Progressives make a fetish out of self-sacrifice, and Tony relishes the chance to fall on his own sword to show us how wrong we are on principle.

        1. fall on his own sword

          Aka, “The Ascot”

          (refer to the following TV thread if you’re confused)

        2. Right. He won’t hate the judges for this ruling. He’ll just hate the voting rednecks a little harder than before.

    2. Part of the reaso.ong in the marriage case was that equal protection is inapplicable. It rejected a right to marriage outside of male-female pairings.

      1. Yeah, well, obviously, it couldn’t be consistent with the 14th Amendment, could it.

        So, if you’re gonna rule against it, you have to have found it inapplicable somehow.

        1. So engage the reasoning put forward instead of getting huffy that one of your premises may actually be one the points of contention.

  4. I’m fairly skeptical of judicial deference to begin with. If you have a reason to believe a law is unconstitutional, you shouldn’t defer to the legislator just because of democracy. That’s sort of the whole point of having a Constitution in the first place.

    1. It is a red herring. Every judge is deferential to some degree or he wouldn’t apply the law at all. And every judge is “activist” or he would never rule any law no matter how obviously unconstitutional void.

      I would argue that no judge who has a consistent view of the Constitution is “activist”. Being an “activist” has nothing to do with how often a judge strikes down a law. An activist judge is a judge who changes their interpretative philosophy case by case based on whatever their desired outcome.
      That kind of thinking can result in both affirming or striking down a law. Its the philosophy that makes the judge activist not the result.

      So, for example, the judges who upheld legally mandated segregation were in my opinion “activist judges” even though they deferred to the legislatures. What made them activist was that they changed their reading of the Constitution to ensure a policy they liked continued. In contrast, the judges who struck down gun bans are not activist judges because they were simply reading the 2nd Amendment like they do every other Amendment instead of inventing special rules for its interpretation because they think guns should be banned.

      1. To some extent its a matter of degree, sure. But this sort of “strong” deference really boils down to a judge deferring to the legislature on how to apply the law embodied in the Constitution.

        And since when do judges defer to anyone in what the law means and how it should be applied?

        Oh, that’s right. They always defer to the State, whether in the form of legislators or regulators. “Checks and balances” my ass.

        1. Of course it is a matter of degree. And that is the issue. The issue is are they deferring for the right reason or just because they will rubber stamp anything the state does? Are they striking a law down because of a principled and reasoned argument that it is unconstitutional or are they doing it using whatever argument is convenient to strike down a law they don’t like?

          Those are the issues. The problem is that those issues get lost because both sides portray any refusal to strike down a law as “deferential” and any striking down of a law as “activist”. And that is just not a meaningful way to define the terms or analyze a decision.

      2. When you keep your blood pressure in check you can make some excellent points, John.

  5. Even if I don’t agree with their opinions, I can live with a judge of any stripe who has a consistent philosophy and reading of the law and applies it regardless of the political implications of the outcome. Sadly, I won’t be king anytime soon. So there will always be people in positions of authority who do things I don’t like. The best I or anyone can hope for is that they do those things in a principled way and not as a means to get whatever outcome they think is good for the country.

    1. “The best I or anyone can hope for is that they do those things in a principled way and not as a means to get whatever outcome they think is good for the country.”

      Even if his principle is that we only qualify for equal protection of the laws if we also win a popularity contest, I’m supposed to cheer him on for applies his disgusting principle consistently?

      How drunk would I have to be think like that?!

      Isn’t there an old Army saying about how being stupid and industrious (rather than lazy) is the worst possible combination? There’s another one about how consistency is the last refuge of the unimaginative, but the guy who said that was gay, so I guess you’d probably ignore that one anyway–just to be consistent.

      Would you have approved of more judgements like the Dred Scott decision so long as subsequent cases were also applied in a consistent manner?

      1. Yes, some principles are beyond the pale. So what? The point is not that principles can never matter. The point is that, absent principles that are utterly immoral or arbitrary, we are better off with a judge who applies the law consistently than we are with a partisan judge even if we agree with that judge’s partisanship and don’t agree with the former judges principles.

      2. Even if his principle is that we only qualify for equal protection of the laws if we also win a popularity contest,

        Here’s the problem, though:

        For gay marriage, what we are really talking about is two competing “popularity contests”. On the one hand, there is the “popularity contest” of electing legislators and passing laws.

        On the other, there is the “popularity contest” embodied in the competing definitions of marriage outside of the law. The EP argument essentially says that this popularity contest is the one that matters. Because the EP argument boils down entirely to saying that, at some point, “marriage” stopped meaning “man and woman”, and starting meaning “any two people”. IOW, the gay-friendly definition won the popularity contest.

        I think its a hard question, to tell you the truth, how and when shifts in society that are not reflected in the law should be forced into the law by judges. What bothers me about the gay marriage argument for EP is that this core issue is just assumed away.

        1. See my point below about the level of judicial scrutiny applied to laws that discriminate based on sexual preference.

          Gays are not accepted in society and when the document was drafted but now they are. Should that change in societal mores require a change in the level of scrutiny applied to these laws? That is the question at the heart of the issue and I don’t think there is an easy answer to that.

        2. Because the EP argument boils down entirely to saying that, at some point, “marriage” stopped meaning “man and woman”, and starting meaning “any two people”.

          I don’t think this is what the EP argument boils down to at all. The EP argument is that the government should always have been applying the law equally. That it didn’t up until recently isn’t the point.

          1. If marriage really (out in society) means “man and woman”, there simply is no EP argument. Gay marriage is a category error under this definition. An analogy might be that there is no EP violation when the state refuses to allow a 16 year old to vote. Society’s definition of “adult” begins at 18 (bear with me), so its not an EP violation to deny adult rights to people who aren’t adults.

            That’s why I think the (asserted?) change in the real definition of marriage is the basis of the EP argument. There simply isn’t one unless gay marriage really means any two people, under which definition the state’s refusal to license gay marriages is an artificial restriction imposed unfairly by the state. That was the argument, in a nutshell, as to why the laws against interracial marriage were struck down.

    2. Even if I don’t agree with their opinions, I can live with a judge of any stripe who has a consistent philosophy

      There are limits, of course, but within the bounds of reasonable disagreement, I’d say this is more or less where I stand, as well.

      1. Didn’t we fight a war over Popular Sovereignty?

        How is this decision consistent with that–isn’t the 14th Amendment a definitive response to popular sovereignty?

        How is this decision consistent with the 14th Amendment?

        1. It is consistent because gay marriage isn’t slavery. The entire question is wehter making a distinction based on sexual preference is something that is subject to ordinary rational relationship scrutiny or something higher.

          Whatever people start throwing around slavery and segregation and interracial marriage in these debates they are just begging the question. The entire issue is whether the courts should treat discrimination based on sexual preference the way it treats discrimination based on race or religion or sex or should they treat it like every other distinction governments make.

          If you think courts should treat this like they do racial discrimination, sure the law has to be struck down. No shit. But the question is why should they do that.

          1. Because the plain language of the Constitution requires it. See my post below.

            1. See my response. The Amendment was never meant to mean that “no state government can ever discriminate on any basis”. The issue is more subtle than that.

          2. “It is consistent because gay marriage isn’t slavery.”

            What makes you think equal protection only applies to slavery?

            Are people of Chinese extraction not entitled to the equal protection of the laws?

            “The entire issue is whether the courts should treat discrimination based on sexual preference the way it treats discrimination based on race or religion or sex or should they treat it like every other distinction governments make.”

            That’s part of the question–it’s not the entire question.

            There’s also the question of whether the existence of people’s rights are somehow determined by way of a popularity contest–and I’m not just saying that’s wrong with sexual orientation and race.

            The government doesn’t have the right to violate my Second Amendment rights, John. Certainly not just because they held a popularity contest on my Second Amendment rights–and I lost.

            This judge wants us to vote these people’s rights into existence. But the existence of our rights does not depend on a fucking popularity contest, John. If you can’t figure that out, then you’re exactly like Tony in at least one very fundamental way.

  6. 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

    Huh?

    1. I am pretty sure conservatives went ballistic over the courts’ refusal to strike down Obamacare. That decision didn’t get this on the A list of any Federalist Society cocktail parties.

  7. I was more confused by …though it he knew it would cause him to face harsh criticism….

    Just poking fun at Root

  8. And now I am evidently, a P Brooks disciple.

  9. The court’s holding was that the laws’ defining marriage as male-female satisfied the minimal rational basis test. The reasoning is described here:

    http://www.washingtonpost.com/…..iage-laws/

    1. Which they do. The issue is should distinctions in marriage based on sexual preference be subject to a higher degree of scrutiny. If the answer is yes, then the gay marriage bans go down even under an intermediate level of scrutiny. If it is no, then they stand.

      The issue is a tough one because it is hard to see a compelling argument for either side. Homosexual activity was illegal for most of the country’s history. It is hard to see how the drafters intended discrimination against gays to be subject to a higher scrutiny.

      At the same time society has changed. Being gay is no longer illegal and is acceptable throughout society. Does that change in social mores require that laws that discriminate based on sexual preference receive a higher degree of scrutiny than they have in the past? Maybe. I don’t think saying that is an unreasonable argument. But I also don’t think saying that the drafters never intended that and thus it shouldn’t be done is unreasonable either.

      1. The problem with that is the language of the 14th Amendment (which I know you know, but I’ll copy it anyway for emphasis)

        All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

        No where does it state that equal protection only applies to laws based on race. You can argue that, given the context in which it was ratified, that it was meant to apply to laws based on race. If the language was ambiguous, then I think you’d have a good reason for doing so. But the language is NOT ambiguous, not even a little bit. So as far as I am concerned, the context is a moot point. If the Framers intended for the Amendment to apply only in matters of race, they should have stated so. They didn’t, and they left no room for doubt. The Amendment says what is says.

        1. The Amendment does not mean and never was intended to mean states must treat everyone exactly the same. If it meant that the states couldn’t function. The nature of government is distinction and discrimination. For example, you can’t get unemployment benefits unless you are unemployed. Those of use with jobs are discriminated against. You can’t get a divers’ license unless you past the test are or of a certain age. The 15 year old or the guy who can’t pass the test is being discriminated against. Those things are fine under the amendment because they are rationally related to a legitimate government ends.

          What the courts have always done is said that the amendment was intended to protect certain classes of people from discrimination, namely discrimination based on race, religion or national origin and later sex. If a government discriminates based on those things, it is subject to a strict scrutiny. In those cases the government has to show both a compelling reason to do it and that what they are doing is done in the least discriminatory way possible. So almost no laws are going to pass that test. And the refusal to grant marriage licenses to gays wouldn’t either.

          The issue is is granting marriage licenses to gays the same thing as not granting them to polygamists or people not of age or it is the same as not granting because of their race or religion. If it is the former, the bans stand. If it is the latter, the bans have to go.

          1. Those are all good points. My point is that the decision of whether or not granting marriage licenses to gays is the same thing as not granting them to polygamists or people not of age or if it is the same as not granting because of their race or religion should not be made based on what was or wasn’t legal in 1868.

        2. In regards to the 14th amendment, to be consistent with orthodox libertarianism, you really have to believe one of two things:

          a) the drafters of the 14th amendment, without intending to or even realizing they were doing it, were including an absolute right of adults to engage in gay marriage, and possibly polygamy and bestiality (those two havent been settled yet because the Zeitgeist hasn’t moved that far yet. Possibly in a generation or two)

          or

          b) we have and should have a living constitution, wherein the written text is open to different interpretations depending on the current state of the Zeitgeist.

          The problem of course is that a) is patently absurd and b) violates other, more important core tenets of orthodox libertarianism.

          so whats a fellow to do? Pretty easy, really, wait until the Supreme Court proclaims that gay marriage is and always has been an unalienable right, declare victory, and pretend your own internal logical inconsistencies don’t exist.

          1. Pretty much Taco. I think Libertarians are making a huge mistake doing that. They should have fought the issue out through the political process. They will end up regretting they didn’t.

          2. Good luck defining “orthodox libertarianism”. Even if you can, it isn’t clear to me how a reasonable definition of such would justify either of your statements, let alone the belief that they are the only two possible conclusions.

            1. The closest thing I can think of to an “orthodox libertarian” interpretation of the 14th Amendment is that government can only treat someone differently than any other if that someone violated another person’s rights. That would require us to do away with any laws that apply only to certain groups and to judge all cases individually. That would require ending prohibitions on polygamy (which I’m all for).

              The bestiality argument is a total red herring. Any view of marriage as a contract, regardless of what the role of the state is in defining that contract, requires at least two consenting parties to form the contract. Animals can’t consent, ergo no one can enter into a marriage contract with an animal. Warning of bestiality is nothing more than a scare tactic employed by people that evidently can’t come up with a better, rational argument.

    2. My interpretation of what he is saying is that, since the State has a rational basis for wanting to encourage stable families, and since marriage is a way to do that, the State can define marriage in any way it wants so long as that definition doesn’t exclude couples that are capable of procreating? Is thar right?

      Regardless, there is some cringe worthy stuff in there. Such as

      People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish.

      Good. God.

      1. You don’t have to agree with an argument to think it is rational. And that is all it takes to pass the rational relationship test. Any law that is not obviously insane or contradictory is going to pass it and really should.

        1. Fair enough, but I don’t think this statement is rational

          But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish.

          A divorce rate near 50% is strong empirical evidence against the government’s ability to encourage stable relationships through marriage. And the rise of stable families outside of wedlock (or at least equally as stable as within wedlock) demonstrates that government encouragement is not necessary.

          Further, it begs the question by assuming that a married family is stable. It may very well be the case that a family would be more stable in divorce than in a terrible marriage. In those cases, government encouragement of marriage may actually contribute to unstable families.

    3. Indeed. And this is why I’ve always been against marriage equality acts. We should be doing away with the BS laws that create a special protected class of married people instead of trying to add more people to that class. Ultimately I hope this decision persists so maybe we can get some more support for getting government out of the marriage business altogether.

  10. One point here that Damon doesn’t make is that time subsequently demonstrated that Sutton was WRONG, according to 5 SC justices, in his analysis of Commerce clause law. Shouldn’t that suggest to him he may also be erring here as well?

    1. Around these parts, Ted, we tend to reach our own conclusions on what the pretty straightforward language of the Constitution means, and don’t give a lot of deference to SCOTUS.

      Especially given their history of igonoring the plain text of the Constitution.

      1. You mean “shall not be infringed” doesn’t mean “it’s OK to infringe a little bit as long as it’s for the children”?

      2. +1 litmus test

  11. Putting aside arguments about the constitutionality of gay marriage bans, the deference generally should be to the constitution and not to legislatures.

    1. I should read before I comment.

    2. Is it still legible through all the shitstains on it?

      1. The constitution, I mean.

        1. I saw the original a few years ago. It was looking pretty shabby. I don’t know if we can trust the people who’ve been copying and interpreting it in the interim. It might suffer from Chinese Whispers Syndrome.

  12. Judges are supposed to defer to the Constitution, not the legislature.

  13. Judicial deferrence is the opposite half of legislating from the bench. Here we have Judge Sutton who, in the “grand” tradtion of Ollie Wendell Holmes Jr. told the litigants “don’t like the law? Pick better legislators!” On the flip side, we have Chief Justice Roberts’ blue-penciling of Obamacare into dubious Constitutionality.

    Which is why federal judges, when faced with a question of Constitutionality should be required solely to answer “yes” or “no.”

  14. This is one of the better discussions of gay marriage that I have read anywhere. Thanks, gang.

    A refreshing absence of name-calling, etc.

    1. Thank Tony for not showing up.

  15. To me, the question comes down to another one: Is marriage a right, or is it a privilege granted by a government?

    If it’s a privilege, then the ballot box is one of the steps to progress. But if it’s a right, then the courts are the way to go. If a supposed right can be granted by a law, then it isn’t a right.

    I think most libertarians believe it’s a right. They at least think that they shouldn’t have to ask for permission to get married. But there is a string the size of a hawser attached. In most countries, marriage comes with some benefits, given at the expense of the taxpayers. Those bennies would have to go if we proceeded down the “It’s a right” path.

    1. It depends on what you mean by “marriage”. If you define marriage as the actual private act of living together and calling yourself “married”, then it I think has to be a right. I don’t see how you could say states have the right to tell gays they can’t call themselves married if they want to.

      If you define “marriage” to mean getting the government sanction and getting the ability to use the power of government to force people to recognize your private union, then I don’t think it is a right.

      Rights are not positive things. They are negative things in that they are restraints on the government’s ability to prevent you from doing something. I don’t have a right to travel across state lines. What I have is the personal autonomy such that the government can’t prevent me from doing that absent due process, as in convicting me of a crime and restraining my freedom. My “right to travel” is a restriction on the government not any guarantee I will actually get to do it, since it is up to me to have the money and ability to do so.

      So if there is a “right to marriage” it is that the government can’t tell me or anyone else I can’t marry someone. I do not however see how that right extends to my affirmative ability to force other people to recognize my marriage.

    2. Good point,I think it is right because freedom of association. You are also correct that government should not be attaching benefits to what is really a right.

  16. Methinks Judge Sutton, in his ruling on Oblamocare, didn’t factor in the propensity of the demoncraps to cheat on election day.
    I believe a fair vote would have sent Oblamo ,and his sick-care laws packing.

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