Will Jeffrey Sutton become the second Republican-appointed federal appeals court judge to vote in favor of marriage rights for same-sex couples? That is the question left hanging after an extraordinary three hours of oral arguments in gay marriage cases from four states before the Sixth U.S. Circuit Court of Appeals in Cincinnati on Wednesday [Aug. 6].
Sutton, a hero to legal conservatives before his appointment to the bench by President George W. Bush in 2003, has been recognized as the pivotal vote in the cases ever since the three-judge panel was selected a few weeks back. Sutton’s colleagues were easily pigeonholed: Martha Craig Daughtrey a Clinton appointee with a strong liberal record first on Tennessee appellate courts and then on the federal bench; and Deborah Cook, like Sutton a Bush43 appointee with a conservative record. [Disclosure: Daughtrey is a longtime personal friend from Tennessee days.]
Court watchers focused on Sutton, however, because of his vote three years ago to uphold the Affordable Care Act even as other Republican-appointed judges were finding it unconstitutional. So Sutton’s questions were listened to very closely by reporters in Cincinnati for the hearing and those, like this reporter, who listened to the audio on line after the fact.
Judges’ questions during appellate arguments, of course, do not necessarily indicate their eventual vote. But they often do, as anyone who has heard Antonin Scalia or Ruth Bader Ginsburg in action can attest.
Like a good judge, Sutton asked challenging questions of both sides in the succession of cases Wednesday from four states: Michigan, Ohio, Kentucky, and Tennessee. Yet, in my listening, Sutton seemed tougher on lawyers for Michigan and Ohio, pointedly questioning their arguments on the substantive merits.
Sutton pounced hard, for example, when Michigan’s solicitor general Aaron Lindstrom described the state’s gay marriage ban as “facially neutral.” “How is it facially neutral?” Sutton asked. “It’s not facially neutral as between people of one sexual orientation and another.”
For attorneys representing the same-sex couple plaintiffs, Sutton raised process questions: Shouldn’t the issue be left to legislators, not judges? Wouldn’t it be better for gay rights advocates to win through the democratic process instead of in the courts? Carole Stanyar, attorney for the lesbian couple in the Michigan case, had an effective answer: “In my state nothing is happening to help gay people,” she said.
Most telling for this listener at least, however, was Sutton’s mini-speech early in the Michigan argument debunking Lindstrom’s view of marriage as a static tradition. Marriage “changes with social mores,” Sutton remarked in a non-question that went on for several sentences.
Sutton rejected Lindstrom’s emphasis on promoting “responsible procreation” through opposite-sex marriage. “Modern conceptions about marriage are more about love, affection, and commitment,” he said. With marriage viewed in that light, the ban “does seem harder to justify even on rational basis grounds,” Sutton said.
In the Ohio case, Solicitor General Eric Murphy defended the state’s ban on recognizing gay marriages from other states by noting that laws would have to be changed for example, forms listing “husband” and “wife” or “mother” and “father.” Sutton was unimpressed: “All I’m hearing you say is you’d have to change it to say spouse.” Daughtrey added her own tweak: “Or parent.”
Among other reporters, Chris Johnson of the Washington Blade heard the arguments as I did. “State bans on gay marriage took a beating Wednesday,” Johnson wrote. Other reporters hedged their bets. “[I]t appeared that neither side could take victory for granted,” wrote Erik Eckholm, the New York Times’s national legal correspondent. BuzzFeed’s legal editor Chris Geidner restated the obvious: The decision, Geidner wrote, “likely sits in the hands of Judge Jeffrey Sutton.”
As expected, Daughtrey signaled through forceful question a certain vote for gay marriage rights. Cook asked relatively few questions suggesting to this listener that she may be resigned to voting in dissent to uphold the state bans.
After the questions, the judges have to write an opinion—or multiple opinions. When it comes to that, Sutton will have a hard time turning his process questions into a basis for rejecting the rights of the actual plaintiffs before him. The only two appellate judges to buy that argument so far Paul Kelly on the Tenth Circuit and Paul Niemeyer on the Fourth are Republican-appointed conservatives from an earlier generation than Sutton; on the Tenth Circuit, Judge Jerome Holmes, like Sutton a Bush43 appointee in his early 50s, voted to strike down the gay marriage bans in Utah and Oklahoma.
It may well be true, as Ginsburg has said about the Supreme Court’s abortion rights ruling, that gay marriage rights would be accepted more readily if accomplished through legislative change state by state. Or perhaps not: gay marriage opponents are persisting even in the face of an unbroken string of marriage equality rulings over the past year.
To uphold the state bans, however, Sutton must find at least a rational basis for preventing April De Boer and Jayne Rowse from being legally acknowledged as parents, both of them, to the three children in their family. He must find a basis for denying to John Arthur, now deceased, the right to list his legally married husband James Obergefell on his Ohio death certificate. In my estimation, that opinion “won’t write,” as judges sometimes put it. Prediction: 2-1 ruling for gay marriage rights, sometime this fall.
An earlier version of this column stated that Sutton could be the first Republican-appointed federal appeals court judge to rule in favor of marriage rights for same-sex couples; Jerome A. Holmes of the Tenth Circuit was the first. The column has been corrected to incorporate this information.