Experts have been warning that while same sex marriage advocacy has been riding high on an unbroken string of court wins, we may see that streak broken as more cases reach the appellate level. There, unlike the lower courts, more judges are appointed based on their loyalty to party line ideology, and there are more judges there who are reluctant to push federal issues over state’s rights.

This is one reason why every progressive ought to care about every election, not just the few big ticket races, as these appointees come from Presidents but are approved by Congress. This is an important point, I’ll talk about in another post, but here is a link for further on this.

We will most likely not have a decision immediately, but next week, cases for a four states make their way to the Sixth Circuit Appeals where a three judge panel may end in a split decision backing state discrimination against same sex couples. ThinkProgress has a good write up on it. While I can’t argue with the reasoning, the analysis is a bit lacking for me. What I wonder about is how Sutton, the anticipated swing judge has decided in past cases where Constitutionality is at stake.

Milhiser writes at ThinkProgress:

To the extent that there is a wild card on the panel, it is Judge Jeffrey Sutton. Prior to becoming a judge, Sutton was a brilliant — and very conservative — litigator who devoted much of his career to cases seeking to expand the role of the states at the federal government’s expense. He also helped lead the conservative Federalist Society’s Federalism and Separation of Powers practice group. Sutton was widely expected to be a reliable conservative vote when he joined the bench, and for most of his time as a judge, he has been.

There are four cases being heard back to back by the judges from the following states, Ohio, Kentucky, Michigan and Tennessee. The cases for each state have some different elements, but all revolve around the use of the 14th Amendment, and equal access. What I’m looking for may be what I found here, and quoting Hunt and Thompson:

That judge, Jeffrey S. Sutton, is a states’ rights advocate who has argued against federal laws protecting people with disabilities, women and minorities. In 2012, he wrote an opinion for the appellate court that reinstated a suit filed by an evangelical Christian who lost her spot in a counseling program at a Michigan university for refusing to work with clients in same-sex relationships.

That doesn’t sound like good news, but in the end, these cases revolve around the US Constitution and not States Rights per se. The Beast has a very good write up that helps articulate the issues: (bullet list formatting is mine)

The multitude of decisions invalidating laws prohibiting same-sex marriage have rested on three different rationales. They all rest on the Equal Protection Clause of the Fourteenth Amendment, which was adopted after the Civil War and which provides: “No State shall . . . deny to any person the equal protection of the laws.”
Over the years, the Supreme Court has identified three types of situations in which laws violate this guarantee.

  • First, laws that treat people differently from one another without a rational justification are unconstitutional.
  • Second, laws that treat people differently from one another with respect to a fundamental right are unconstitutional, even if they are rational, if they lack a compelling justification.
  • Third, laws that treat people differently on the basis of their race, sex, national origin, or similar “suspect” bases are unconstitutional, even if they are rational, if they lack a compelling justification.

I began writing this after I read the first linked post on ThinkProgress, and glad I’ve found these other posts to help broaden the perspective. Truly Sutton is a wild card, although in some respect we would hope that every judge would be deciding based upon the merits of the case and not on ideology. For most of us, we see this as either Constitutional or not, and I hope this post adds some depth to that. In the end, we may need to remember that each of these State cases is a bit different, but time will tell.

There are two distinct aspects I’m looking for aside form the base decisions. First I’m interested to see if this or any court draws a distinction between those states with marriage ban laws as compared to those states with constitutional bans. That’s a place where States Rights vs Federal jurisdiction might come into place. Secondly, I’m interested to see how the anti marriage equality folks react and use the resulting decisions.

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