In April 2015, the United States Supreme Court will hear oral arguments of an appeal of the Sixth Circuit Court of Appeals decision in DeBoer, et al., upholding the ban on same-sex marriage in Michigan, Ohio, Tennessee and Kentucky, the four states in the Sixth Circuit.

Sixth Circuit Court Judge Jeffrey Sutton, writing for the majority, explained the court’s reasoning for ruling against marriage equality, stating:

When the courts do not let people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair minded way.

The court’s job in this case was to decide a case about states’ rights, which affected the legal rights and well-being of lesbian and gay families in four states. Instead two federal judges placed the labeling of hero status as a more important legal consideration than the rights of these families and their children.

The court’s “hero” framework is condescending, misleading and an abrogation of judicial responsibility. It is not the job of a federal judge to be concerned with who might later be viewed as a hero in the underlying social issue, or to decide cases based on a desire to influence ultimate hero status. Dissenting Judge Martha Craig Daughtrey recognized this point, writing that Judge Sutton’s majority opinion “would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,” noting that he treated the families as abstractions, and concluding that the opinion failed to grapple with the case’s constitutional questions.

The court’s assertion that change occurs through “customary political processes…by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair minded way” is not accurate. It is difficult to think of a time in our nation’s history where “new social issues” such as desegregation in schools and public accommodations, voting rights for women and African Americans, discrimination, sexual harassment, disability accommodations, the right of married and single people to use contraception, and other issues were resolved without litigation playing a significant role in the social change.

The court’s concern that a victory for the gay litigants would “perpetuate the idea that the heroes in these change events are judges and lawyers” implies that people are unable to identify their heroes and need the court’s assistance in doing so. People who have been oppressed by society because of their race, gender, sexual orientation, gender identity, religion, disability, or other condition are capable of distinguishing among the actual heroes of their movement; the people, including judges and politicians who did the right thing when given an opportunity; the judges and politicians who only took action when it was politically expedient and those who continue to fight against progress.

Some federal judges have achieved the status of greatness because of the quality and significance of their work. Chief Justice Earl Warren worked hard to convince his colleagues that a unanimous vote in Brown v Board of Education was in the best interest of our nation. His wisdom and action in this regard made him a great Chief Justice.

Instead of contributing to the advancement of social justice, Judge Sutton used irrelevant, inaccurate hero and social change analysis, to avoid addressing the lesbian and gay litigants’ rights to equal protection and due process, while admonishing them to be thankful that the court was giving them additional time to engage in free speech with straight people and compete for hero status.

There is a saying among lawyers:

When the facts are on your side, pound the facts;
when the law is on your side, pound the law;
when neither the facts nor law are on your side, pound the table.

Judge Sutton’s hero analysis sounded like a loud pound on the table.

One Response to “Marriage Equality and Judge Sutton’s Hero Analysis”

  1. Melissa AndersonNo Gravataron 14 Mar 2015 at 7:15 am

    Helpful illumination of the case, Christine, for those of us who aren’t attorneys and did not read the decision!

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