On Wednesday, a three-judge panel of the United States Court of Appeals for the Sixth Circuit — Jeffrey Sutton, Deborah Cook, and Martha Craig Daughtrey — heard oral arguments in cases from four states (Kentucky, Michigan, Ohio, and Tennessee) in which lower court judges have struck down state bans on same-sex marriage and bans on the recognition of same-sex marriages legally entered into elsewhere.   Thanks to the Sixth Circuit’s same-day release of audio recordings of the arguments, it’s been possible for anyone interested in these issues who could not be in the courtroom in Cincinnati to find out exactly what the judges and lawyers said in the marathon argument session.  

To those of us who care about the Constitution, the role of the courts, and the protection of individual rights, some of what was said was rather startling and suggests that a lesson in basic civics is in order.  Here’s a quick look at some of the most egregious misconceptions running through the states’ arguments and some of the judges’ questions:     

Misconception:  Judges have no authority to decide these cases.

Eric Murphy, the State Solicitor of Ohio, one of the attorneys arguing in defense of the discriminatory marriage laws, told the court that:

“[T]he fundamental question in all of these cases is the same, and that fundamental question is not whether Ohio should recognize same-sex marriage, but who should make that important decision of public policy on behalf of the state.  In rejecting Ohio voters’ decision on this public policy issue, the district court ignored its place within the judicial hierarchy and our constitutional democracy.”  (Emphasis added.)

Fact:  When plaintiffs come into court contending that a state law violates their rights under the U.S. Constitution, judges have the authority to decide if the Constitution has been violated.  As Chief Justice John Marshall famously wrote more than two centuries ago (and the Supreme Court has repeatedly recognized since), “It is emphatically the province and duty of the judicial department to say what the law is.”

Misconception: State voters have the right to trump the U.S. Constitution, and define marriage however they wish.

The marriage bans at issue in these cases were the result of measures passed by voters, and the defenders of the bans seemed to think that this gave the laws some sort of sacred, untouchable status.  Indeed, as evidenced from the quote above, Ohio State Solicitor Murphy’s argument was grounded in this contention.  Judge Cook appeared sympathetic to the argument, voicing concerns about “disparag[ing] the voters – the votes of citizens . . . “  As Robert Barnes put it in the Washington Post,  Judge Cook “worried about the courts undermining voters, who approved the bans overwhelmingly.”

Fact: The United States Constitution is the supreme law of the land, period.  The Supremacy Clause,   Article Six, Clause 2, expressly states that:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”  (Emphasis added.)

In other words, while our system of constitutional federalism provides great autonomy to the states, there is a limit to what they can do:  they cannot pass laws nor adopt amendments to their own Constitutions (whether through voters or legislators) that violate the federal Constitution. 

Misconception: Fundamental rights can be put to a vote.

The misguided notion that state voters have the authority to define marriage however they want is part and parcel of the equally misguided notion that a minority’s enjoyment of fundamental rights can be subject to a majority vote. 

Fact:  As the Supreme Court held in West Virginia v. Barnette,

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Misconception:  It’s appropriate for a judge to consider whether gay men and lesbians would be better off letting the “democratic process” play out.

Judge Sutton repeatedly asked the lawyers representing those challenging the discriminatory marriage laws whether gay men and lesbians would be better off letting the “democratic process” play out, rather than asking judges to decide these issues.   Here are some of Judge Sutton’s remarks:

“[D]on’t you think you’re more likely to change more hearts and minds through the democratic process than you are with a decision by five Justices of the U.S. Supreme Court?”

“[W]hy do you want this route?  It’s not 100% obvious to me why it’s the better route – it may be the better route for your clients, and as a lawyer you have to keep the focus on that, but it’s not 100% obvious to me it’s the better route for the gay rights community.  That’s not obvious to me.”

Fact:  This might be an interesting topic of debate in a classroom, but it’s an irrelevant subject for a judge. The role of federal judges is not to decide whether plaintiffs have pursued the best strategy, but to decide justiciable cases, that is, cases over which a court can properly exercise its authority.   If a case presents a genuine legal controversy and the proper parties are before the court  —  all of which is unquestionably true here  —  it is the role of judges to decide the case at hand.  The fact that a legal wrong might be righted at some unknowable time by the action of other branches of government is not relevant — the injured are entitled to seek relief and justice from the courts.  That’s why courts exist. 

In posing his questions, Judge Sutton said he was “curious,” and perhaps that’s all his questions were – an intellectual but judicially irrelevant exercise.  But certainly his questions fed into the harmful and incorrect notion that the courts should not be deciding these cases, and perhaps they were a message to his conservative colleagues on the Supreme Court that they should let the “democratic process” play out.

In addition, it seemed strange for a federal judge virtually to lecture minorities harmed by discriminatory laws about the wisdom of waiting for majorities to decide to recognize their rights, rather than invoking their entitlement to judicial relief.   And how long should minorities wait, anyway?  Judge Daughtrey underscored this in the rhetorical question she asked the attorney defending the Michigan ban:

“But can I ask, Mr. Lindstrom, if you have any idea how long it would’ve taken in the South [to repeal laws banning interracial marriage] if the Supreme Court hadn’t come in with Loving v. Virginia, and what a shock that was down there?”

The above misconceptions were all intertwined in the overarching claims that echoed throughout Wednesday’s arguments – that there are no limits on state regulation of marriage, and no role here for judges.  Significantly, in more than thirty cases in the past year, other courts — including the Tenth Circuit and the Fourth Circuit —  have recognized that in our system of federal constitutional supremacy and judicial review, these claims are meritless.   The Sixth Circuit should do the same.

Photo: CBS Clevland

Photo: CSPAN Video