Since the Supreme Court handed down its ruling in Windsor a little over a year ago, every single federal court that has heard a challenge to a state law banning same-sex marriage has ruled in favor of equality. Mark Joseph Stern thinks that streak may end with the 6th Circuit Court of Appeals, which heard oral argument in four cases (Michigan, Ohio, Kentucky and Tennessee) last week.
The heady era of the post-Windsor winning streak may soon come to a crashing halt.
That’s the message that Judge Jeffrey Sutton seemed to telegraph during Wednesday’s gay marriage oral arguments at the 6th Circuit. Sutton is the swing vote on the circuit panel: To his left is Judge Martha Craig Daughtrey, a Clinton appointee and staunch liberal; to his right is Judge Deborah Cook, a thoroughly right-wing George W. Bush appointee. Sutton, also placed on the bench by Bush, is a genuine conservative and a former clerk of one Justice Antonin Scalia. (Scalia calls him “one of the very best law clerks I ever had.”) But ever since Sutton upheld Obamacare in 2011, he’s been lauded on the left for his judicial independence.
Will that independence lead Sutton to strike down gay marriage bans in Michigan, Kentucky, Ohio, and Tennessee? Or will his conservatism push him to uphold the states’ laws? Based on Wednesday’s arguments, marriage advocates have good reason to worry. Unlike Cook, who clearly viewed gay marriage prohibitions as a rational state policy, Sutton seemed to scowl at the prospect of excluding an entire class of people from marriage. But unlike Daughtrey—who fiercely questioned the state’s interest in discriminating against gays at every turn—Sutton appeared exceedingly hesitant to bring gay marriage to America through judicial fiat.
It should be noted, however, that many of the judges who have ruled against same-sex marriage bans in other states were also conservatives appointed by Republicans. There’s a part of me that hopes that this panel does uphold those laws, if only because it will force the Supreme Court to rule on the subject next term.