Most of Judge Sutton’s analysis is devoted to showing that laws banning same-sex marriage can meet minimal “rational basis” scrutiny. On that point, I think he is likely right. But it elides the reality that the strongest arguments against such laws is that they should be subject to heightened scrutiny, either because they discriminate on the basis of sex, or because they do so on the basis of sexual orientation.
I. Judge Sutton’s neglect of the Sex Discrimination Argument
Most egregiously, Sutton completely ignores the sex discrimination argument, even though it was in the briefs and has been endorsed by some of the previous lower court opinions on the subject. Even some opponents of same-sex marriage recognize that laws banning it are based on sex discrimination. As one of them puts it, such laws “require state officials to consider people’s sex” in determining who is allowed to marry whom, and “involve… treating sex as Virginia’s ban [on interracial marriage] in Loving had treated race.” If Sutton disagrees, he should have at least explained why.
Perhaps Sutton ignored the issue because he believes that the entire question of heightened scrutiny was foreclosed by the Supreme Court’s one line opinion in Baker v. Nelson (1972), which dismissed a same-sex marriage case on the grounds that it failed to present a “substantial federal question.” Sutton argues at length that Baker is still good law, despite multiple Supreme Court decisions since then, which seem to cut against it. But Sutton completely ignores the fact that Baker was decided before the Supreme Court first ruled that gender classifications are subject to heightened intermediate scrutiny, which did not occur until Craig v. Boren in 1976. If Sutton wishes to rely so heavily on Baker’s cursory non-analysis of the same-sex marriage issue, he at least needs to explain why Baker was not superseded by Craig, and by the many other Supreme Court decisions applying heightened scrutiny to gender classifications since then (including in cases where the discrimination in question was not motivated by animus or hostility to either men or women, as such).
II. A Weak Response to the Argument that Laws Discriminating on the Basis of Sexual Orientation Should Get Heightened Scrutiny.
Sutton does briefly address the claim that laws banning same-sex marriage should get heightened scrutiny because they discriminate on the basis of sexual orientation. He argues that sexual orientation discrimination should not get heightened scrutiny because gays and lesbians are not disenfranchised and are not a politically “powerless” minority, as evidenced by their important political victories over the last decade, including the enactment of same-sex marriage in many states. “[F]rom the claimants’ perspective,” he writes, “we have an eleven-year record marked by nearly as many successes as defeats and a widely held assumption that the future holds more promise than the past.”
This response simply doesn’t cut it. By the same reasoning, it could be argued that discrimination in marriage laws against African-Americans should not have been subject to heightened scrutiny when the Court struck it down in Loving v. Virginia, in 1967. After all, by 1967, blacks had won numerous political victories in the previous decade, including the enactment of the Civil Rights Act of 1964 (a far greater triumph than anything yet achieved by the gay rights movement). Thanks to the Voting Rights Act of 1965, blacks were no longer disenfranchised. By 1967, numerous states had abolished laws banning interracial marriage, and only sixteen still retained them (fewer than currently retain laws banning same-sex marriage). And few in 1967 could doubt that there was “a widely held assumption that the future [for blacks] holds more promise than the past.” I have significant reservations about the sexual orientation discrimination argument myself. But Sutton’s response to it is weak.
III. Same-Sex Marriage and Originalism.
Finally, Sutton argues that there is no right to same-sex marriage under the original meaning of the Fourteenth Amendment, though he offers little analysis to support that conclusion. Since he concludes that Baker v. Nelson is still binding, he did not even need to consider this issue. But given that he chose to do so anyway, he should have addressed the powerful originalist case for such a right, especially as it relates to the sex discrimination argument. Recently, prominent conservative originalist scholar Steven Calabresi has offered several originalist arguments against laws restricting marriage to opposite-sex couples. Sutton ignores all of them, including some that had been raised previously by others (such as the sex discrimination rationale).
Some of the flaws in Sutton’s analysis in the same-sex marriage case bear a surprising resemblance to those of his most famous previous opinion: his concurrence upholding the Obamacare individual health insurance mandate. In that case, he relied on an idiosyncratic interpretation of the distinction between facial and as-applied challenges that went against Supreme Court precedent, and was not adopted by any of the other judges who considered the issue on either the Supreme Court or the lower courts (including the many who voted to uphold the mandate on other grounds). Both opinions combine strong rhetorical statements about the humility required of lower court judges – especially when it comes to deferring to the Supreme Court – with neglect or significant misunderstanding of relevant Supreme Court precedent.
Just as there were serious legal arguments for upholding the individual mandate, so too there are serious arguments for upholding laws banning same-sex marriage. But Judge Sutton’s opinions failed to make either case as effectively as he could have, because he ignored or misanalyzed some of the strongest arguments of the other side.