THE BLOG
01/08/2015 04:13 pm ET Updated Mar 10, 2015

Sutton's Defense Is Indefensible

On October 6, 2014, the Supreme Court declined to hear seven cases in which federal courts of appeals had found bans on same-sex marriages to be unconstitutional. One month later, a divided court of appeals for the Sixth Circuit, in an opinion written by Judge Jeffrey Sutton, upheld the bans in Michigan, Ohio, Tennessee, & Kentucky. All four groups of plaintiffs have asked the Supreme Court to review that decision, and the Court is likely to decide whether to take up those cases at its conference on January 9, 2015. There are a number of legal issues in the case, but the keys to the ruling below are the two reasons Judge Sutton gave to support the ban, which this essay argues are indefensible under whatever degree of scrutiny the Court applies.

The majority opinion of Circuit Judge Jeffrey Sutton upholding bans in four states on same-sex marriage has an aura of reasonableness to it, but when it comes to offering real reasons to justify the bans, it cannot withstand analysis. According to Sutton, there are two reasons why the bans are constitutional: (1) they encourage procreation in marriage by opposite-sex couples, and (2) they uphold traditional marriage, while allowing for future change.

There are three undisputed facts that demonstrate conclusively that those reasons cannot sustain the bans: (1) most of the benefits of marriage for opposite-sex couples are unrelated to encouraging procreation; (2) the laws also preclude civil unions or any other arrangement that confers any of the benefits of marriage on same-sex couples; and (3) the Ohio ban was applied to deny the surviving member of a marriage performed out of state the right to include on the death certificate of his husband the indisputable fact that he was "married."

Tradition
This argument asserts that the states did no more than maintain the centuries-old tradition of recognizing that marriage is only between a man and a woman, while proceeding cautiously and leaving open the door to same-sex marriages. But if tradition were a legitimate basis for bans on certain kinds of marriages, the challenge to the ban on interracial marriages struck down in 1967 in Loving v. Virginia would have come out the other way.

Moreover, in denying the right of same-sex couples to marry, the states did much more than retain the status quo: they enshrined their decisions in their state constitutions, hardly the equivalent of going slowly. Judge Sutton also asserted that a constitutional amendment imposing a ban on same-sex marriages was necessary to prevent the state courts from doing what the Massachusetts Supreme Court did when it found the right to same-sex marriage in its state constitution. But if that is all that was intended, a much narrower amendment would do the job, either by barring state courts from hearing such claims, or adding to the state constitution a provision stating that "Nothing herein shall be construed to create a right to marriage by persons of the same sex." Either route would have made it clear that the state legislature could end the ban, but that the state courts could not.

Second, each state also banned civil unions that would at least allow same-sex couples to enjoy benefits such as the right to adopt the partner's children, to visit a partner in the hospital, and to file joint income taxes. Because civil unions are less than two decades old, there is no tradition at all with respect to them, let alone a tradition of excluding them from tangible benefits enjoyed by opposite-sex couples. And by amending their constitutions to forbid their legislatures from enacting laws permitting civil unions - or anything resembling them - the states went full speed ahead to deny rights and did not simply act to preserve the status quo.

Third, Ohio's refusal to allow a same-sex plaintiff who was legally married in another state from stating on his spouse's death certificate that they were "married," is totally unprecedented. Ohio made no effort to show that it ever questions the asserted marital status of a deceased, let alone that it ever challenged that status. If there had been such a tradition, Ohio would surely have offered evidence that what it did here was no more than a variation of what it regularly does in completing death certificates.

In the end, invoking tradition is another way of saying, "this is the way we've always done it, and we have no obligation to change." That may be an explanation of how the law got to where it is now, but it cannot provide a justification for why it should remain that way.

Encouraging Responsible Procreation
The premise of this argument is that only opposite-sex couples can cause unintended pregnancies and that a state could reasonably conclude that children produced by couples who are not married have less favorable outcomes than are children raised by parents who are married. The first is undisputed, but the second was not supported by any evidence submitted in any of the proceedings in the trial courts by supporters of the bans. In any event, the crux of the problem is with the conclusion that these facts justify denying same-sex couples the same opportunity to marry as opposite-sex couples. In making that leap, the court of appeals asserted that permitting marriage for opposite-sex couples was a legitimate means of "subsidizing" the decision to have children within a marriage, rather than outside it.

That conclusion cannot withstand analysis because the remedy - limiting marriage to opposite-sex couples - sweeps in vast numbers of people for whom no such incentive is needed or even relevant. Those include the old, the infertile, and those who have no intention of having children. It is also vastly over-inclusive because marriage confers a range of benefits - such as filing joint tax returns - that have nothing to do with procreation of children.

Nor is it reasonable to refer to marriage as a form of subsidization of a decision to procreate within a marriage. If that kind of subsidization were actually intended, it would have taken the form of cash payments or tax credits to those who give birth to children in a marriage and stay married until the children reach majority. No rational person would conclude that a one-time "payment" of a marriage certificate could possibly be appropriate compensation for what in theory is a promise to raise their children as a married couple, let alone that such subsidy can be justified for the married couples who never have children.

Second, the bans also apply to civil unions between same-sex couples. By definition, same-sex couples do not need an incentive for responsible procreation, but the desire to reward opposite-sex couples for procreating responsibly cannot justify a ban on the wholly separate status of civil unions. If the ban did not extend to civil unions, same-sex couples would still not receive the "subsidy" of being able to say that they are married, although they would be able to receive the other benefits of such a status. However, the inclusion of the ban on same-sex civil unions further demonstrates that the procreation subsidy theory cannot support that aspect of the ban, yet there is no other justification offered to sustain it.

Finally, in Ohio (and not disclaimed by any other state or Judge Sutton), the prohibition extends to denying the surviving member of a same-sex marriage the right to have the status of the relationship with his deceased spouse listed on the death certificate as "married," which is a description of what lawfully occurred in another state. There could not possibly be any connection between encouraging opposite-sex couples in Ohio to procreate within a marriage, and refusing to allow same-sex couples married outside of Ohio to state on the death certificate of one member of a couple that they were married. Indeed, that application of the ban on same-sex marriages is the proverbial thirteenth stroke of the clock, making all that came before suspect, not just as applied to death certificates, but to civil unions and same-sex marriage itself.

When all of the rhetoric is stripped away, the ban on same-sex marriages cannot be justified by the reasons given by Judge Sutton. Unless the courts are willing to sustain the prohibitions on same-sex marriages based on no more than "it's OK because we say so, even if we have no reasons to support it," these bans cannot survive.