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“Judge Sutton Buys Time”–Prof. Hadley Arkes in National Review Online
By The James Wilson Institute •
Posted on Nov 13 2014
The 6th Circuit Court of Appeals became the first federal appellate court to buck the trend of other appellate courts who had read the Supreme Court's decision in U.S. v. Windsor (2013) as grounds for overturning state laws defining marriage as between one man and one woman. Writing for the court's 2-1 majority, Judge Jeffrey Sutton issued a carefully crafted opinion which is nearly certain to place the question of marriage before the Supreme Court once again. However, Judge Sutton's ruling presents more than just an opportunity to argue marriage before the Court again, as Prof. Arkes explains in a piece at National Review Online.
Some excerpts:
In this case of DeBoer v. Snyder, Judge Sutton composed a careful opinion, drawing on the lines of analysis most familiar to lawyers and judges in recent years, but he deployed those lines in rejecting, point by point, the string of arguments that have been accepted all too credulously by federal judges as they went about declaring the deep wrongness, in law, of marriage defined as the union of one man and one woman. Judge Sutton wrote in a worldly way, with flashes of wisdom: “People may not need the government’s encouragement to have sex,” he wrote. “And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish.”
What Judge Sutton has given us is a decision that breaks the momentum of the other side. It conveys, with a jolt, that this issue of marriage and the law has not really been “settled.” Not yet. Judge Sutton, as I say, has bought us time. But time for what? The decision inDeBoer has opened up the possibility for something serious to be done on the political side.
The first is the Defense of State Marriage Act proposed by Representative Randy Weber (R., Texas). That bill would take Justice Kennedy seriously and give him what he professes to want: that marriage would be defined in the states; that federal law would take its definition of marriage from the state of anyone’s domicile; and that a state then would not be forced by the federal courts to adopt same-sex marriage.
A second measure, though, would make things a bit harder for these Democrats. That would be a version of what was proposed initially by Carrie Severino, a former clerk to Justice Clarence Thomas: the Defense of Monogamous Marriage Act (DOMMA). The challenge was posed years ago: If marriage were detached from the function of begetting, what would confine marriage to a coupling? Some people claim that their loves are woven into larger ensembles of three or four.
Read the whole piece here.