November 7, 2014

"The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy."

"But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal. … Instead, the majority sets up a false premise — that the question before us is 'who should decide?' — and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for 'proceeding with caution' (otherwise known as the 'wait and see' approach), I dissent."

Wrote Judge Martha Craig Daughtrey in what Slate's Mark Joseph Stern calls "the Hilarious, Humane Dissent From the 6th Circuit’s Awful Gay Marriage Ruling."

Stern cannot fawn over Daughtrey enough:
Daughtrey’s opinion isn’t just blistering; it’s a scorching, bitterly funny, profoundly humane excoriation of Sutton’s sophistry. She opens with a witty jibe.... Daughtrey’s writing is searing, firm, and fiercely moral.... But if her logic is sound and satisfying, her parting shot is downright astonishing.... one of the more memorable gay rights opinions ever penned. 
Jeffrey Sutton, the author of the majority opinion, is guilty not only of "sophistry" (Daughtrey's word) but also — as Stern puts it — of writing a "craven, callous opinion" that amounts to a "timorous, waffling shrug" and an "ersatz submission to 'democracy,'" which "is the greatest sin a judge could commit."

That's laying it on awfully thick! I'd agree with Daughtrey's position on the merts, but the drama and attention-getting prose undermines what is the crucial foundation of judicial activism: that it's based on the judge's duty to do what the law requires.

Stern's pumping that prose up to a new level and insulting Sutton does Daughtrey no favors, but I'm sure it entertains the Slate crowd, and here I am linking to it, and I'm pretty sure that's a net gain for Stern and Slate, despite my criticism.

36 comments:

Anonymous said...

Does the article come with a skirt and pom pom's?

mccullough said...

Sutton's right about the rational basis and original understanding of the 14th Amendment.

Let the Supreme Court decide the issue.

Paco Wové said...

And then the sour-faced old judges ran out of chambers, faces burning with shame, while everbody else whooped and high-fived.

Ignorance is Bliss said...

...but the drama and attention-getting prose undermines what is the crucial foundation of judicial activism: that it's based on the judge's duty to do what the law requires.

Judicial activism has never been based on what the law requires, or even allows, but only on what the activist knows is the right result.

David said...

Thing is, this issue has been decided by the people. Not through their representatives in legislation but directly, via an attitude shift of unusual proportions.

Without social media we would still be leaving this up to the judges.

And by the way the whorehouse menu was a fake. Too many contemporary slang words. Try to find jerk off in a early 20th century reference.

Henry said...

Ilya Somin at Volokh Conspiracy is no great fan of the majority ruling either.

AustinRoth said...

However unlikely, I would love to see SCOTUS uphold this ruling, especially of they did it under the quaint notion of State rights and sovereignty on marriage.

The Left would have a complete meltdown.

Anonymous said...

Someone needs to tell these judges, "It's over."

mccullough said...

Somin's post is interesting, but not persuasive.

The miscegenation law in Loving is based on state law beliefs of the racial superiority of whites to blacks.

Same-sex marriage laws do not reflect a state's belief that men are superior to women.

And whether laws discriminating against gays and lesbians should receive the same level of judicial review under the Equal Protection clause as laws discriminating on the basis of race or sex is an issue the Supreme Court hasn't addressed. This is especially true in the context of marriage laws, which have in this country only permitted one-man, one-woman, one-marriage at a time.

John Tuffnell said...

Too early to predict a 9-0 SCOTUS reversal of this opinion?

The liberals are on board, with Kennedy, and the conservatives can champion individual rights over state oppression, or some such thing.

Next question is whether, after the Oracles Have Spoken, the controversy ends. It's good for any R running for President not to have to deal with it, much like the way Walker avoided it this go-round.

Anonymous said...

" It's good for any R running for President not to have to deal with it"

One of my big beefs with Republicans. Why are they always running away from the culture war?

Gun control is unpopular, Democrats don't run away from it.

Illegal Immigration is unpopular. Democrats don't run away from it.

There is a long laundry list of unpopular issues that the Democrats don't run away from, and they continually pull Overtons Window in their direction.

We can't win by running away. It used to be, "Run away to fight another day." Sadly, Republicans never return to fight another day. They just keep running away.

campy said...

Paco Wové wins – if not the Internet, at least this blog.

Saint Croix said...

Let the Supreme Court decide the issue.

It depends on what the attorneys do, I think? They could appeal to the entire 6th circuit. Or maybe they could file for Supreme Court appeal. Or maybe they have to do the 1st before they do the 2nd.

Anyway, there was no division on the court of appeals, so no reason for the Supreme Court to hear the case. Now there is one.

Lyssa said...

I was hoping that we would avoid a SCOTUS fight, as I think that that will just get people riled up again and any ultimate decision will lack legitimacy. But, now that it's here, I very much hope that SCOTUS will drop the dreadful rational basis argument, and find it to be unjustifiable sex discrimination instead.

Chuck said...

For a short and pithy summary of the decision you can't beat NRO's Ed Whelan:

http://m.nationalreview.com/bench-memos/392243/sixth-circuit-rules-favor-state-marriage-laws-updated-ed-whelan

Mark said...

From first principles, why should the state (or State) have any say at all in who can marry whom?

Correct me if I'm wrong, but Suttons argument seems to stem from the central point that there is no coherent guidance from the Supreme Court in how to approach the question. Without an opinion from above on gay marriage, and without a clear constitutional basis apparent to the majority in this ruling, he has deferred to the States' legislation.

If marriage is treated as a contract like any other, with ample case law defining the States' roles in relation to those contracts, where's the problem?

Are there instances where contract law permits parties of opposite genders but not parties of the same gender? This is a serious question. God help us all, this may become yet another Commerce Clause issue.

Saint Croix said...

Making this a fight over babies or children will only remind conservatives why marriage is important, and what the issues in this case are.

Because right now you could sum up the Supreme Court's jurisprudence by saying that it's hostile to human reproduction. They like birth control, abortion, sodomy and homosexuality--anything that keeps another baby from being born.

And if people think about gay marriage and babies, all of a sudden the nice argument (marriage! love! flowers!) becomes problematic. If gay people want to have kids, they're going to have to get somebody of the opposite sex involved in their union. Are we going to replace the biological idea of a father and a mother with 2 mothers and a father? (Or two fathers and a mother?)

If the Supreme Court starts thinking about gay men trying to rent a uterus, gay marriage is in trouble. Notice I use the word "rent" there, because the idea (I think?) is that the mother will give birth to the baby and then disappear forever.

Saint Croix said...

Are there instances where contract law permits parties of opposite genders but not parties of the same gender?

Yes, it's called marriage! Like for 10,000 years!

I swear sometimes I think libertarians breed in a machine or something.

Next you'll be saying that sex discrimination is malign! We'll all have to be bisexuals. Anthony Kennedy has ordered it.

Ann Althouse said...

"Judicial activism has never been based on what the law requires, or even allows, but only on what the activist knows is the right result."

Maybe so, but the judges nevertheless know that they need to lay that foundation as they write opinions explaining their decision. You can say they are lying or dissembling or fooling themselves, but it's still the foundation.

Mark said...

Trust me, Libertarian make babies the same way everyone else does.

Being Libertarian doesn't mean not having morals. It means being humble enough to allow other people to live their lives as those others see fit. Just because it doesn't work for you doesn't make it wrong.

Sorry if you have problems wrapping your head (and your heart) around that.

Real American said...

these two opinions mirror perfectly the arguments on either side of this issue: reason and logic vs. childish emotional response. One is best suited for objective judicial review and the other destroys the rule of law.

Here's from the Dissent:

"If we in the judiciary do not have the 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."

Anyone who believes this garbage is truly unfit to be a judge in our country. It is the role of the judiciary to objectively decide what the law is, not what it ought to be based on the judges' own personal policy preferences. It is not court's job to "right fundamental wrongs." It is a judge's job to decide cases based on the facts and on the law, not be some kind of crusader out to fix society of whatever ills she believes it to have.

It is no wonder that a judge who so grossly misinterprets her own role in our system of government can't properly assess how self governance works.

rhhardin said...

Women are too emotional to be judges.

buster said...

"If marriage is treated as a contract as any other..."

Marriage is not a contractual relationship. It is a legal status.

Freedom of contract is hardly the point.

buster said...

"If marriage is treated as a contract as any other..."

Marriage is not a contractual relationship. It is a legal status.

Freedom of contract is hardly the point.

Saint Croix said...

Being Libertarian doesn't mean not having morals.

That's not what I said. What I was doing was mocking the idea that it's always malign to discriminate on the basis of sex. We all do it. And in fact there are biological reasons why people seek out the opposite sex.

I like libertarians. It's important to have ideas and ideologies. But you have to be careful when you impose those ideas on the real world. Particularly when you are asking unelected rulers to impose these ideas.

John Tuffnell said...

"these two opinions mirror perfectly the arguments on either side of this issue: reason and logic vs. childish emotional response. One is best suited for objective judicial review and the other destroys the rule of law."

Apply this to Judge Posner's opinion, not usually one described as emotional. He thinks the emotional ones are those who cannot defend the ban in court and resort to personal dislike of the notion that gays can marry someone of their own sex.

Unknown said...

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Elevating marriage to a "right" is problematic. Tying this right endowed by the Creator is especially problematic, since the Creator apparently indicated a different treatment.

mtrobertsattorney said...

The dissent deals with the majority opinion by instructing the folks that it "....leads us through a largely irrelevant discourse on democracy and federalism."

This how the dissent deals with serious arguments grounded on principles of democracy and federalism.

In other words, there is no need to address them because, as all liberals and progressives know, these kinds of arguments
are "irrelevant" when it comes to matters of constitutional law.

This is what passes for legal reasoning today.

Sebastian said...

"If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate . . . "

Odd. Presumably, a federal judge has authority to right wrongs if federal statutes or the Constitution say so.

In this case, the Fourteenth Amendment was adopted without anyone giving any thought to its application to that supposed "fundamental wrong." It "left excused" what this judge takes to be wrong.

Modern Progressives are free to think SSM prohibitions are wrong, of course, but reading their moral sensibility into the law is itself lawless. To impose that reading by fiat is oppressive, particularly if it overturns results of the democratic process.

Saint Croix said...

I was hoping that we would avoid a SCOTUS fight, as I think that that will just get people riled up again and any ultimate decision will lack legitimacy. But, now that it's here, I very much hope that SCOTUS will drop the dreadful rational basis argument, and find it to be unjustifiable sex discrimination instead.

I wish the Supreme Court would start over with the equal protection clause. Start with the text.

"No state shall...deny to any person within its jurisdiction the equal protection of the laws."

Broadly speaking, we are not allowed to discriminate in malign fashion against any people at all. On the other hand, a state has wide powers to discriminate against conduct. A state can discriminate against killers, rapists, prostitutes and jaywalkers, because this is discrimination against an action, not a person. Any human being can avoid this behavior. Are you free to avoid the class? Then equal protection is satisfied.

So then the question is whether marriage, traditionally defined, is discrimination against conduct, or against a person. Are you free to avoid the class? Can people modify or change their sexuality? Is homosexuality genetic? Or is it learned or adaptive behavior that we develop from a very early age? Or is it just free will and people do what people do?

In the sodomy case the Supreme Court rejected the equal protection argument, preferring instead to decide the case under "substantive" due process. That might suggest that some people on the Court see sexuality as conduct, as opposed to fixed-at-birth.

It's actually kind of dehumanizing to say that people do not have free will, that we are destined to engage in whatever sexual behavior we are programmed to do. After all, we're not robots. Some people shift from straight to gay, and other people shift from gay to straight.

And there is very little science in this area that answers this question. Sexuality is very mysterious and we don't know why we have the urge to sleep with A, but not B.

Saint Croix said...

I think the sex discrimination argument is the most logical argument that people can make for a right to gay marriage. After all, we've been telling people they can't discriminate on the basis of sex for 40 years.

But of course the problem is that we all discriminate on the basis of sex, all the time, when it comes to sex itself. And this is not malign discrimination. Unless you want to argue that bisexuality is the only moral behavior, and everybody else is a sexist bigot.

Martha said...

I met Jeffrey Sutton at Yale Law School several years ago when he was one of three Moot Court judges.

I assure you, Judge Sutton is incapable of a "timorous, waffling shrug".

Gahrie said...

Thing is, this issue has been decided by the people.

Yes it was. And each time, the decision of the people was overridden by judges to allow gay marriage anyway.

Douglas said...

Lyssa,
Do you think the rational basis argument is dreadful because it's ridiculous to argue that there is no rational basis for traditional marriage laws, or because it doesn't open the door to as many exciting social innovations as some other argument might?

jr565 said...

Saint Croix wrote:
If gay people want to have kids, they're going to have to get somebody of the opposite sex involved in their union. Are we going to replace the biological idea of a father and a mother with 2 mothers and a father? (Or two fathers and a mother?)

And isn't that by itself an endorsement of polygamy?

jr565 said...

Lyssa, There is no rational basis to assume that the biological mothers and fathers of children should raise those kids? And that a mother and father is a better model than two dudes? When we are talking divorce or paternity who gets consideration first? The biological parents.
IF you were to adopt a kid who was raised by his single mother, and the father was out of the picture for his whole life because,for example, he was never told he had a kid the courts would side with the biological parent over the adoptive one almost every time. Because biology trumps almost everything. How then would it be, that society wouldn't value biology when it defines marriage? The structure is there to allow for biological parents to raise biological kids, first and foremost. That is perfectly rational, and is a distinct flaw in the gay marriage model.