Yesterday the Sixth Circuit heard three straight hours of oral argument in challenges to four states’ marriage or marriage-recognition laws brought by same-sex couples. The arguments in the four cases are available at this link. Note that the last case listed in the link, DeBoer v. Snyder (from Michigan), was actually the first one heard. The sitting judges were Jeffrey S. Sutton (appointed by President George W. Bush), Martha Craig Daughtrey (Clinton appointee), and Debra L. Cook (also a GWB appointee). Now that I’ve listened to all three hours, and if oral argument is any guide, I think the Sixth Circuit is likely to reject the claims for same-sex marriage and marriage recognition in a split decision. Most media accounts (see New York Times story here and the Post account here) also characterize the Court’s decision as a toss-up leaning toward rejection of the constitutional arguments for same-sex marriage, with Judge Daughtrey a very likely vote to strike down bans on same-sex marriage, Judge Cook a likely vote to uphold the bans, and Judge Sutton sitting in the middle but mostly critical of the claims. If anything, I’m a bit more confident that the Sixth Circuit will reject the claims than some observers seem to expect.

First, I think Judge Sutton is most apt to accept the view that the Supreme Court’s 1972 summary refusal to hear an appeal in Baker v. Nelson, a case in which the Minnesota Supreme Court rejected a same-sex marriage claim, is still binding on lower courts. The main argument against that view has been that significant doctrinal changes since 1972 have eroded the precedential authority of Baker. Sutton suggested that he thought things were a bit murky, but that lower courts were probably still bound by it. If that’s the basis for his opinion, it could actually be a quite brief decision simply rejecting the claims as precluded by Baker. It would then avoid all of the difficulties in deciding the substantive merits of the same-sex marriage claims, like whether there’s a fundamental right to marry, or whether sexual-orientation discrimination should be subject to heightened scrutiny, or whether there’s animus in state constitutional amendments, or whether there’s even a rational basis for laws limiting marriage to opposite-sex couples. If Baker controls–a conclusion all of the other federal courts have rejected since Windsor–then the Sixth Circuit is bound by it regardless of the merits. The Supreme Court, of course, will not be so inhibited and any opinion along these lines by the Sixth Circuit would be a parenthetical in a footnote in the history of these cases. If same-sex marriage advocates are going to lose in the Sixth Circuit, as appears likely, the least harmful loss would be one grounded on Baker.

Second, if the merits are reached, Sutton appeared ready to rule against the plaintiffs (though this is more doubtful). He seemed quite sympathetic to the policy arguments for same-sex marriage, but didn’t embrace the argument that the fundamental right to marry includes same-sex couples. He also doubted that there wasn’t at least a rational basis for existing marriage laws. He also leaned toward the view (although again this isn’t certain) that Sixth Circuit precedent precluded a holding that anti-gay discrimination is suspect.

The most interesting exchanges occurred on the question whether a state’s interest in procreation was rationally related to limiting marriage as the states have. The states’ view was that having a marital status for opposite-sex couples advances the interest in encouraging procreation (an inclusion framing). The opposing view is that excluding same-sex couples does not advance the state’s interest in procreation because heterosexual couples’ procreation isn’t affected by whether gay couples can marry (an exclusion framing). At least one of the state’s attorneys conceded that excluding same-sex couples did not further the state’s procreation interest but insisted this fact should not affect the rational-basis analysis. The conclusion then depends on how the rational-basis question is framed: inclusion v. exclusion. I think it’s fair to say that there are rational-basis cases supporting both ways of framing the question.

A couple of odds and ends from the arguments: Judge Sutton repeatedly pressed same-sex marriage attorneys on whether it would be better to pursue the cause through legislatures and popular votes. As a matter of strategy, it’s a fair point that a few of us have repeatedly made over the years. But once litigation begins–and there’s no central committee making strategy choices–it’s not the role of judges to render opinions based on their advice about how a movement might best achieve its goals. (This is distinct from the Burkean point that judges should be humble about social change and about the confidence with which they make important decisions in constitutional-law cases.)

A related response is the one made plaintively by the lawyer for the same-sex couples. Representing a man whose husband’s Ohio death certificate did not record their marriage, he argued that human dignity required recognition now. “It’s the last record of a person’s life on this Earth,” he said, and the record was wrong about one of the most important statuses one can have. “Allow these men to rest in peace.” When Sutton said that it would be better to allow change to proceed over time as it has, the Ohio lawyer’s voice gained an urgency. “I represent four couples. Their kids deserve two parents. They deserve them today.” The lawyer for the Michigan couples became emotional, almost choking up as she spoke about how her clients live in “fly-over country” where no progress is being made for gay men and lesbians. You can listen for yourself at 51:00-53:00 in the oral argument in DeBoer v. Snuder.

Judge Sutton–smart, thoughtful, respectful, and knowledgeable throughout–promised a ruling soon.