What does a legal argument for traditional marriage sound like? This…

7 Nov

From the 6th Circuit, the first to decide that laws enforcing a traditional definition of marriage at the state level are constitutional.

From Ed Whelan:

By a 2-1 vote, a Sixth Circuit panel has ruled that the marriage laws of Michigan, Ohio, Kentucky, and Tennessee do not violate the federal Constitution. Judge Jeffrey Sutton, joined by Judge Deborah Cook, wrote the majority opinion. Judge Martha Daughtrey dissented.

I’ll note that Sutton’s majority opinion contains the elegant, readable prose and careful analysis that is characteristic of his work. (Stated somewhat differently, the answer to the question why Sutton took longer than Seventh Circuit judge Richard Posner—see my Parts 123, and 4 posts—to issue an opinion is that Sutton is a judicial craftsman.)

Here’s a summary:

1. The Supreme Court’s summary ruling in Baker v. Nelson (1972) binds federal courts of appeals to hold that state laws that define marriage as the union of a man and a woman are constitutional. The Court’s ruling last year in Windsor v. United States doesn’t overrule Baker, nor does it clash with it. Neither of the two preconditions for ignoring Supreme Court precedent applies. Nor do the Court’s recent denials of certiorari in other marriage cases have any bearing. (Slip op. at 13-17.)

2. Under the original meaning of the Fourteenth Amendment, state marriage laws are clearly constitutional. (17-18.)

3. State marriage laws easily survive rational-basis review. It is rational to define marriage as a male-female union because (a) governmental recognition of marriage operates to regulate the intended and unintended effects of male-female intercourse (19-21), and (b) it’s reasonable for the people of a state to assess how the benefits and burdens of redefining marriage are playing out in other states before they decide whether to take that step (21-22). “Any other approach would create line-drawing problems of its own.” (See 22-23.)

4. State marriage laws do not reflect animus. (24-28.)

5. There is no “fundamental right” to SSM. (28-31.)

6. Under Sixth Circuit precedent, rational-basis review applies to sexual-orientation classifications. Windsor says nothing to the contrary. (31-35.)

7. Under an “evolving meaning” approach to the Constitution, the relevant measure is society’s values, not judges’ values. “Freed of federal-court intervention, thirty-one States would continue to define marriage the old-fashioned way.” (35-38.)

This ruling is presumably headed to the Supreme Court, where I’m not at all optimistic about what will happen. But it’s good to see a deeply intelligent and judicious majority opinion from a federal appellate panel.

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