This is going to be long so I’m just going to jump right in. Jeffrey Sutton wrote the majority opinion in yesterday’s 6th Circuit ruling that upheld gay marriage bans in four states. Early in his opinion he wrote:

Through a mixture of common law decisions, statutes, and constitutional provisions, each State in the Sixth Circuit has long adhered to the traditional definition of marriage.

No, they’ve long adhered to *a* traditional definition of marriage. There are several traditions out there, many religious, and many which include same-sex marriages. Just like the Antebellum South had long adhered to *a* traditional definition of ownership (which included owning human beings). Fortunately, the United States Constitution doesn’t defer to tradition for its statutes – it defers to equality, regardless of traditions to the contrary.

Sutton continues:

Sixteen gay and lesbian couples claim that this definition violates their rights under the Fourteenth Amendment. The circumstances that gave rise to the challenges vary. Some involve a birth, others a death. Some involve concerns about property, taxes, and insurance, others death certificates and rights to visit a partner or partner’s child in the hospital. Some involve a couple’s effort to obtain a marriage license within their State, others an effort to achieve recognition of a marriage solemnized in another State. All seek dignity and respect, the same dignity and respect given to marriages between opposite-sex couples. And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?

Should the dignity and respect of minority citizens come down to protection under the Constitution or the whims of the majority? Is a judge really asking that? One of those two has been great at protecting the rights of minorities throughout history. One has really, really not. In fact, the reason the judiciary is there is to drop the gavel when the majority wants something unconstitutional. If we left every decision to the majority whim the judiciary wouldn’t even fucking exist.

This was a pattern with Sutton. It was clear “[Sutton] repeatedly expressed deep skepticism that the courts were the best place to legalize gay marriage, saying the way to win Americans’ hearts and minds is to wait until they’re ready to vote for it.” This is pure stupid. It’s like saying the courts shouldn’t have intervened in mixed race marriage or Jim Crow laws, but waited until the Southern racists were ready to solve those problems through a vote that would never happen.

Sutton then goes on to cite Baker v. Nelson (which seems to be the new hotness for the anti-gay crowd). Baker v. Nelson was so 1972, and Ed Brayton describes it this way:

On the substance, the appeals court relied on Baker v Nelson, a 1972 case involving same-sex marriage in which the Supreme Court denied cert in a case with a one-word order that said the case did not raise “a substantial federal question.”

Which is really all the attention it deserves, but I like to be thorough. One of the rules the SCOTUS has in place to guide lower courts on narrowly applying summary dispositions like Baker is that “subsequent developments by the Court on the relevant doctrines may cast doubt on the continuing validity of a summary judgment.” Which is exactly what has happened.

In recent years, most judges faced with claims like those in Baker have concluded that subsequent developments render Baker no longer authoritative. As U.S. Supreme Court Associate Justice Ruth Bader Ginsburg summarized at oral argument in 2013: “The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. And the same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.” Since theWindsor decision in June 2013, no U.S. Court of Appeals has held Baker to be controlling on the subject of same-sex marriage.

It turns out shit’s changed in the last 40 years, which is why we have more recent rulings like Romer v. Evans, United States v. Windsor, Hollingsworth v. Perry, andLawrence v. Texas – y’know, the rulings to which the Circuit Courts are deferring in their rulings. The list of similar, more recent cases, goes on and on. Indeed, when Judge Pérez-Giménez deferred to Baker when making a similar ruling in Puerto Rico he acknowledged in his ruling that he was aware of these cases:

Pérez-Giménez acknowledges this fact with a lengthy citation to other court decisions holding that Baker is no longer binding on lower courts. The list of cases that disagree with him is so long that it takes up nearly an entire page of his opinion.

You can bet that Justice Sutton is also aware of them, but chose to dip back into less relevant precedent for some mysterious reason.

In fact, if you really want to talk about precedent, Baker was cited by the defenders of the Defense of Marriage Act (section 3 was ruled unconstitutional in 2013, which paved the way for all these decisions striking down gay marriage bans) and California’s Proposition 8 (also ruled unconstitutional). When the 9th Circuit ruled on Prop 8, even though the panel was split in its ruling, they all agreed that Baker did not apply. To reach past all these more recent rulings, of which Justice Sutton was unquestionably aware, to dredge up Baker is strange. (If you really want a great write up on Baker v. Nelson, this is the best one around)

Then there was this:

In trying to figure out the original meaning of a provision, it is fair to say, the line between interpretation and evolution blurs from time to time. That is an occupational hazard for judges when it comes to old or generally worded provisions. Yet that knotty problem does not confront us. Yes, the Fourteenth Amendment is old; the people ratified it in 1868. And yes, it is generally worded; it says: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage. Tradition reinforces the point. Only months ago, the Supreme Court confirmed the significance of long-accepted usage in constitutional interpretation. In one case, the Court held that the customary practice of opening legislative meetings with prayer alone proves the constitutional permissibility of legislative prayer, quite apart from how that practice might fare under the most up-to-date Establishment Clause test. Town of Greece v. Galloway, 134 S. Ct. 1811, 1818–20 (2014). In another case, the Court interpreted the Recess Appointments Clause based in part on long-accepted usage. NLRB v. Noel Canning, 134 S. Ct. 2550, 2559–60 (2014). Applied here, this approach permits today’s marriage laws to stand until the democratic processes say they should stand no more. From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning that the Fourteenth Amendment permits, though it does not require, States to define marriage in that way.

That’s like saying the Fourteenth Amendment doesn’t apply to women because they weren’t able to vote until long after it was ratified. It’s like saying the Fourteenth Amendment doesn’t apply to interracial couples because they were forbidden to marry until long after it was ratified. It’s like saying the Fourteenth Amendment doesn’t apply to black people and buses or segregated schools/water fountains because those things were permitted long after the amendment was ratified.

Our history is rife with legal examples of where the courts had to go back and say “Yeah, all that equality stuff actually applies to x demographic too.” The ruling here is simple: the Fourteenth Amendment promises equality, and here’s one that’s gone overlooked due to outdated cultural norms for far too long – just like in all the others.

What Sutton does here is literally saying “Yeah, the people who drafted the Fourteenth Amendment meant equality for all, but not necessarily gay people.” Fuck, gay people weren’t even in their minds when they were writing the amendment because this wasn’t an issue then. It’s up to the judiciary to determine if modern issues are subject to the amendment, which same-sex marriage clearly is in this case.

My friend Lindsey hit this nail squarely on the head. She said:

The very idea that they can’t strike down unconstitutional laws is ludicrous bullshit. The Supreme Court gave themselves the power of judicial review with Marbury vs. Madison and it’s served that function ever since given that the Constitution doesn’t specifically state how laws would be deemed unconstitutional. Giving that power to the Court makes sense too. It keeps tyranny of the majority from occurring which was a big thing the drafters of the Constitution were concerned with. The very idea they would say it isn’t their place to strike it down is laughable. It isn’t just within their power; it’s their primary function.

Bingo.

Now back to Sutton’s majority opinion:

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.

Um, this is not the view of marriage by every society in the world, not even recently. And by “significant number of the states” did you mean barely a third of them (the same ones that didn’t want to let go of slaves, let interracial couples marry, women vote, or desegregate, well, anything)? I’m not sure we use “significant” the same way.

And even if this were the view of every society on earth, so what? Your job as a judge isn’t to decide if it’s popular, it’s to decide if it’s fair/Constitutional. Popular injustice is still injustice.

One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse.

And here we go with the procreation argument. Any imbecile can see that procreation has dick to do with marriage. Unmarried people can legally have children. Married couples can legally not have children. If you’re medically unable to have children, you can still get married (assuming Jesus is ok with it, I guess). Sex makes children, not marriage.

Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.

This is an argument for gay marriage. I mean think about it, gay couples (and any couples) wouldn’t be able to adopt kids if being straight is what led to stability. Every major medical and psychological body in the civilized world has confirmed that gay people form families just as stable (if not more so) than straight couples. Love and responsibility lead to stability, not whatever genitalia you have.

What’s more, there’s no law saying that unstable marriages (where children may or may not have been taken away) must dissolve. You know why? Because marriage isn’t about stability. Even if it were, why suggest LGBT people can’t form stable marriages when all the science confirms they can?

And yes, men and women may take their procreative urges wherever they take them. That’s why it’s perfectly legal to have children when you’re not married and why that’s never going to change. Compare this to same-sex couples who can only have children with careful planning and it’s plain to see how this line of reasoning makes zero fucking sense.

Sutton even undermines this in his own opinion:

No doubt, that is not the only way people view marriage today. Over time, marriage has come to serve another value—to solemnize relationships characterized by love, affection, and commitment. Gay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment. 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.

If you admit that gay people can form stable relationships with children then why the paragraphs of bullshit about procreation? AAAAAAAAAAAAAAAAAAAARRRRRRRRGHAPDOIUFAPOSDJFAS;DJFAS;KL!!!! Yes gay people can do all that stuff he mentioned above just as well, if not better, but shouldn’t states get to perpetuate a state of inequality anyway?

NO! Hell no! Fuck no! That’s like saying “Yeah, black people are people who suffer too and who deserve equality, but shouldn’t a state get to decide whether or not they can be owned as property?” NOOOOOOOOOOOOOOO!

And in the very next page Sutton goes right back to saying the procreation argument makes sense:

What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.

Then old people shouldn’t be able to get married. Sterile couples shouldn’t be able to get married. Having children should be illegalized outside of marriage. But they’re not because marriage isn’t about having kids. And, even if it were, so fucking what? Same-sex couples can adopt or even have children of their own with medical assistance. For those families, even if I grant your premise about marriage being good for kids, you’re saying the children of gay couples deserve less than those of straight parents. And Sutton purports to be caring for children in his ruling.

This whole thing about procreation sounds way more Catholic than Constitutional.

This post is already getting stupid long, so I’ll skip to Sutton’s conclusion which was handled spectacularly by Baal, one of the commenters here:

Also from the closing of the majority opinion: “Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way. ” The judges ruling on an equal protection claim said to use the legislature and ‘seek resolution in a fair-minded way’. That’s not the law of equal protection in the US. These (anti-gay) judges are pulling a new mode of legal analysis out of their asses. The do not sit on a supreme court and are not allowed to do that. Protecting the minority is not done by majority vote! I’m struck how traditional legal analysis supports gay rights and it’s the flipping weird ass made up judicial activist crap that is coming from the so-called conservative judges.

Fortunately a blistering dissent was written by Martha Craig Daughtrey. Here’s the first paragraph:

If you think that was harsh, check out her closing paragaph where she pretty much accuses her colleagues of abandoning their oaths:

More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

And why not? It’s so clear that the two majority judges had some standard in mind other than the Constitutional standard they swore an oath to uphold (probably to Jesus in their minds, which shows you how much that’s worth).

So what happens now? One commenter said, “I think the next step will be to ask for an en banc ruling where this will be over turned.” I don’t think that will be the case. There are ten Republican appointees on the 6th Circuit and only five Democrat appointees. Granted, the legal conclusions here are so clear and so simple that several Republican appointed judges have ruled in favor of marriage equality during our huge streak of legal successes, but overcoming that particular lot is unlikely. What’s more, if the en banc route is pursued then we probably wouldn’t get a ruling this session – and Ginsburg isn’t getting any younger. That’s why the ACLU has already filed an appeal of the Ohio case to the Supreme Court. The ACLU wants this in front of the SCOTUS, and why not? Odds are good that Kennedy, who has a spotless record of ruling in favor of gay rights (even if he doesn’t apply broad scrutiny) is on our side, and that’s the deciding vote.

On the whole, this was an absolutely embarrassingly argued decision, but it’s not actually a win for conservatives. There’s a reason the ACLU wants this in front of the Supreme Court. This is a good chance to ensure that equality becomes the law of all the land – even in the heart of Mississippi. This is Kennedy’s legacy. It’s Kennedy’s Loving v. Virginia and he knows it.

Personally, I’m excited.