With the Supreme Court opting on Monday not to wade further into the gay-marriage debate, gay America now turns to, of all places, Cincinnati. There toils the least likely of potential gay-marriage heroes: a judge known as an Antonin Scalia fanboy, who has ruled against federal protections for women and people with disabilities and was for a while seen as a short-lister for a Supreme Court nomination under a Republican president.
Judge Jeffrey Sutton — 53 years old and a dead ringer for John Hoynes on The West Wing — is the inscrutable swing vote on the Federal Sixth Circuit Court of Appeals’ three-judge panel, which is due to rule any day now on six gay-marriage cases that span Michigan, Tennessee, Ohio, and Kentucky. In the complicated legal morass created by the Supreme Court’s refusal to hear appeals in several gay-marriage cases, the legal consensus is that SCOTUS decided it could keep ducking because every appellate court thus far has ruled the same way — that is, for marriage equality.
Sutton, flanked at oral arguments in August by one judge who was almost comically pro-marriage equality and another who seemed solidly on the other side, finds himself in a fascinatingly powerful position. If he concurs with the eight circuits that have already found a fundamental right to same-sex marriage, his vote will expand marriage equality to four more states. If he and the Sixth Circuit come down in support of the right of states to ban gay marriage, the Supreme Court, faced with conflicting rulings among the circuits, will almost certainly step in to take the case. If that happens, there is good reason to think that marriage equality will become the law of the land.
Which is all to say Sutton could be doing gay marriage a big favor whichever way he votes.
Despite his conservative street cred, Sutton’s remarks and questions during oral arguments left court-watchers clueless about which way he’d go. Early on, responding to a lawyer for the state of Michigan who argued that keeping marriage exclusive to heterosexuals is crucial to the well-being of children, he said: “Maybe originally marriage was about procreation, but today it’s really about love, affection and commitment. If you see marriage through that lens, it does seem difficult to justify why it’s okay for one group to be allowed to marry but not another.”
But later that day, he also questioned whether the courts were the proper place for gay couples to seek acceptance and equality: “If changing hearts and minds is one of the key goals, aren’t you more likely to change hearts and minds through the democratic process than you are by five justices of the U.S. Supreme Court? … Why do you want this route? It’s not 100 percent obvious to me why it’s the better route … for the gay rights community. That’s not obvious to me.”
In that last remark Sutton seemed to acknowledge the likelihood that sea-to-shining-sea marriage equality is coming sooner or later — and that he’d prefer not to make the call himself.
The possibility that Sutton is squishy is a surprise, given his résumé. He clerked for Scalia. He was an active member of the Federalist Society, the hard-core states-rights crowd. When President George W. Bush appointed him to the federal appeals court in 2003 at age 42, the liberal People for the American Way joined “literally hundreds of disability, environmental, civil rights, and other organizations in opposing Sutton’s confirmation, based largely on his extreme stance and prominent role in the ‘states’ rights’ or ‘federalism’ revolution that has already severely limited Congress’s ability to protect Americans from discrimination and other harm,” according to a 2,600-word People for the American Way screed against him. (In frequent appearances before the Supreme Court while serving as Ohio’s state solicitor and in private practice, he argued that the Americans With Disabilities Act and the Violence Against Women Act were unconstitutional.)
Yet in 2011, Sutton stunned everyone with his vote to uphold the Affordable Care Act on grounds that the Commerce Clause of the Constitution allowed Congress to regulate health insurance. The dismay on the right was palpable, with conservatives castigating him as a traitor on social media and deleting him from their SCOTUS short lists.
Now same-sex-marriage proponents view him as a potential game changer. None of the appellate judges who have ruled for gay marriage thus far were appointed by Bush, who made social conservatism a litmus test for appointments. If Sutton finds in favor of a constitutional right to marry, that would speak volumes to the appellate judges in the three most conservative circuits, where gay marriage has yet to be argued.
“If the Sixth Circuit agreed, that would send a powerful message that would be taken seriously by the other remaining circuits,” said Shannon Minter, legal director of the National Center for Lesbian Rights and an attorney for plaintiffs seeking the right to marry in Tennessee.
Sutton, whose panel has not issued its ruling more than two months after hearing arguments, almost got away with not ruling on gay marriage at all. The conventional wisdom was that the Supreme Court would take up at least one of the cases this week, freezing any other litigation across the nation until their ruling next year. By leaving the question unsettled, they effectively legalized same-sex marriage in states under the circuits that have already ruled but left room for the remaining circuits to dissent.
“I don’t think what they did makes his job any easier; I don’t think it makes it any harder,” said Vanderbilt Law professor Suzanna Sherry, who has followed Sutton’s career carefully. “It just makes it more important for the rest of us.”