Sixth Circuit Sanity

It was a relief to read the measured, intelligent analysis of Judge Jeffrey Sutton. He wrote the majority opinion for a Sixth Circuit Court of Appeals panel. It determined that state laws defining marriage as between a man and a woman do not violate the U.S. Constitution.

One particularly lucid sentence stands out. “A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States.”

The opinion goes on to observe that it’s not unreasonable to want to regulate the sexual relations of men and women, given the fact that sexual intercourse can lead to children. That’s one reason why marriage is marriage and not an exclamation point on any relation that involves love, affection, and commitment.

Judge Sutton allows that the meaning of marriage is changing, and it has in many ways become less of a distinct institution centered around male-female fertility. “All of this supports the policy argument made by many that marriage laws should be extended to gay couples, just as nineteen States have done through their own sovereign powers. Yet it does not show that the States, circa 2014, suddenly must look at this policy issue in just one way on pain of violating the Constitution.”

The opinion strikes a significant blow against the notion that people like me oppose gay marriage out of an “animus.” Here’s what Judge Sutton says: “It is no less unfair to paint the proponents of the measures [defining marriage as between a man and a woman] as a monolithic group of hate-mongers than it is to paint the opponents as a monolithic group trying to undo American families.” I hope Justice Kennedy is paying attention.

Sutton also makes the simple observation that gays and lesbians do not suffer from a “political powerlessness” that requires “extraordinary protection from the majoritarian political process.” On the contrary, like many effective interest groups in American politics they win some and lose some, with more wins than losses lately.

This is not an opinion about the merits of same-sex marriage. And it’s more than an opinion about the limits of judicial activism. Instead, it’s a much needed opinion warning us against—and guarding against—a significant danger in our society, which is politics by litigation and the “constitutionalization” of policy and moral disagreements.