Three steps toward coming to understand why the Sixth Circuit's marriage decision was right

The Sixth Circuit's recent split-panel ruling on the constitutionality of four states' legal definition of marriage as the union of one man and one woman has unleashed a wave of commentary. Most of the commentary I've come across has been critical of Judge Sutton's opinion for the panel majority. 

Generally speaking, criticism by legal scholars has been more measured than popular criticism in both substance and tone; some academic critics have even acknowledged that Judge Sutton's opinion contains some respectable (or at least competent) legal arguments. My impression, nevertheless, is that most law professors (a substantial supermajority) have an opinion that resembles in substance and tone some of the more popular criticism. That may be one reason why it is hard to find commentary by law professors expressing agreement with Judge Sutton's opinion. 

Another reason is the nature of the issues. One of the biggest challenges confronting the judges deciding these appeals was figuring out the best doctrinal framework for analyzing the legal claims. The Supreme Court (at least those in a Supreme Court majority) can determine this by fiat. But lower-court judges do not have that power. Judge Sutton addressed this challenge by looking at the core Fourteenth Amendment claims through seven different lenses, all in an admirably concise twenty-six pages (part II of the opinion, sections A-G, pp. 13-38). These were: (1) the perspective of an intermediate court [II.A, pp. 13-17]; (2) original meaning [II.B, pp. 17-18]; (3) rational basis review [II.C, pp. 19-24]; (4) animus [II.D, pp. 24-28]; (5) fundamental right to marry [II.E, pp. 28-31]; (6) discrete and insular class without political power [II.F, pp. 31-35]; and (7) evolving meaning [II.G, pp. 35-38].

Given the challenges posed by the variety of analytical frameworks, and in light of the range of sub-issues presented by each, my overall assessment of Judge Sutton's opinion is very positive. (No surprise there, of course for anyone familiar with my previous assessments of the constitutional issues and of Judge Sutton.) Judge Sutton's discussions of Baker v. Nelson [II.A] and of rational basis review [II.C] are particularly praiseworthy.  

I had originally titled this post "in defense of the Sixth Circuit's marriage decision." But I abandoned that title because a post with such a title would have to be much longer or just part one of a series. Instead, I offer here three steps in a chain of reasoning designed to explain to critics of the Sixth Circuit's marriage decision where at least some of us who believe it to be constitutionally correct are coming from.

First, "[t]his [really, actually, truly] is a case about change--and how best to handle it under the Constitution." If the federal Constitution provides a right to marry a person of the same sex, then federal courts obviously must enforce that right regardless of what popular majorities think. But if the federal Constitution does not provide such a right, then federal courts have no authority to act as if it does. In resolving the legal questions surrounding the existence of such a right, Judge Sutton's consideration of the broader constitutional structure of which the Fourteenth Amendment is just one part was entirely appropriate.   

Second, the relatively new belief that the federal Constitution provides a right to marry a person of the same sex is most readily understood as resulting from a change in public opinion rather than a change in the content of constitutional law.  

Third, it is unlikely that the federal Constitution provided a right to marry a person of the same sex prior to the relatively recent changes in public opinion. It is possible, of course, but not likely.

There is more that one can say with respect to each of these three claims and how they relate. For example, a change in public opinion may have enabled judges finally to see that the Constitution has always (or at least since 1868) provided a right that prior generations have been unable to see. Or maybe the Constitution does and should change in response to changes in public opinion. But recognizing the centrality of change to the issues decided in the Sixth Circuit appeal should take critics a long way toward recognizing the reasonableness of Judge Sutton's disposition even if they are ultimately unmoved on the outcome.