As you may have noticed, the Sixth Circuit snapped the streak of gay marriage appellate court victories by a 2-1 vote in DeBoer v. Snyder. Reading Judge Sutton's I felt like he was doing his best John Marshall impersonation, but my descriptor was immediately upstaged by Judge Daughtrey's dissent: "The author of the majority opinion has drafted what would make an engrossing make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy." In any event, given the direction the modern GOP is heading I don't think the Party will view this opinion as adequate penance for the Obamacare apostasy.
Others will have more substantive commentary I this opinion and its implications (the most obvious one being the creation of a circuit split, which means the Supreme Court likely will be forced to step in). I did have two thoughts I felt worth sharing:
* Probably the primary arrow in the conservative judicial quiver regarding gay marriage bans is the appeal to let the democratic process take its course. Judge Sutton leans into this theme hard -- his opinion comes close to treating gay marriage as a democratic inevitability. And maybe he's right, though I'm skeptical -- at least as a nationwide matter. But I've yet to see a conservative opinion on this subject address the heads-I-win-tails-you-lose logic at work here. In the early 1970s, Baker v. Nelson era, gay rights claims could be brushed aside because the LGBT movement was barely a blip on the political radar. Nowadays, they start doing much better in the political game, and suddenly that new-found political clout is the reason for continued judicial restraint. Now one could argue that its the older, dismiss-the-marginal court that's the real villain here. But the fact remains that, under this line of argument, equal protection doctrine is making a promise it cannot keep. It is distressing how easily these opinions slide between older precedents which justified themselves on the marginal status of gays and lesbians (nobody supports gay marriage! Sodomy can be criminalized!) and newer ones which rely on their (sort of) successful integration.
* I've become more intrigued about the expressive meanings communicated by rational basis versus heightened scrutiny review, and how they impact judicial willingness to invalidate legislation. We often think of tiered-scrutiny equal protection doctrine as expressing a continuum of social concern and condemnation: problems we think are relatively minor and unimportant get rational basis review, while those that are more severe and threatening deviations from our collective national charter get strict scrutiny. This, in any event, characterizes a lot of the rhetoric that goes into how we decide whether a given classification will receive heightened scrutiny. Yet there is a sense in which the opposite is true. A law which fails strict scrutiny may be a perfectly good law, all things considered. By definition, it may well be "substantially related" to an "important governmental interest" -- and hey, that probably puts it above median as legislation goes. So there's no shame in failing strict scrutiny. Rational basis invalidation, by contrast, seems to involve a much harsher moral judgment -- anybody who supports this law is irrational, a loony, a nutjob. So in that sense, losing on rational basis represents a much more significant judicial benchslap than strict scrutiny review could ever deliver. Of course, the problem is that courts will be quite reticent to actually make such declarations if doing so means contending that large swaths of Americans hold irrationally prejudiced political beliefs. Going back to Judge Sutton: "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." And ultimately, this results in a similar paradox as above: the courts are reluctant to elevate all that many classifications to the ranks of "suspect"; they argue that such a decision must be restricted to only the most extreme instances of wrong. And courts are reluctant to strike laws down under rational basis for the same reason, as Judge Sutton alludes to. Together, the real principle here is simply that equality breaches by definition must be rare.