Jeffrey Sutton. (Photo: Diego M. Radzinschi/NLJ)
Judge Jeffrey Sutton—a George W. Bush appointee to the U.S. Court of Appeals for the Sixth Circuit who heard arguments Wednesday in a string of cases challenging state same-sex marriage bans—is no stranger to closely watched, divisive issues that are on a fast track to the U.S. Supreme Court.
Sutton was the first Republican appointee on a federal appeals court to side with the Obama administration in the initial fight over the health care reform law. In 2011, he was part of a divided three-judge panel that upheld the Affordable Care Act’s individual mandate—defying ideological pigeonholing.
Sutton could be the deciding vote in the same-sex marriage cases before the Sixth Circuit. The three-judge panel heard three hours of arguments on Wednesday in six cases challenging laws in Michigan, Ohio, Kentucky and Tennessee that ban same-sex marriage or the recognition of same-sex couples legally married elsewhere. The federal trial judges in each of the six cases struck down the bans.
Sutton was joined on the panel by Senior Judge Martha Craig Daughtrey, a Clinton appointee, and Judge Deborah Cook, also a George W. Bush appointee.
During arguments on Wednesday, Daughtrey seemed more sympathetic to same-sex marriage supporters. Cook didn’t ask as many questions as the other judges, but when she did, she seemed inclined to steer the conversation back to the issue of deferring to the wishes of voters.
Sutton on many occasions questioned the logic of trying to achieve rights for same-sex couples through the courts, as opposed to going through the electoral process and trying to convince voters. But he seemed less sympathetic to defenders’ justifications for the bans.
The Sixth Circuit is the third federal appeals court to weigh challenges to same-sex marriage bans. The Fourth and Tenth circuits struck down bans this year, and Utah and Oklahoma have petitions pending before the Supreme Court. Challenges are also pending in the Fifth, Seventh and Ninth circuits.
The Fourth Circuit’s divided ruling on July 28 declaring Virginia’s ban on same-sex marriage unconstitutional split along political lines. Judges Henry Floyd, an Obama appointee, and Roger Gregory, a Clinton recess appointee who was renominated by George W. Bush, struck down the ban. Judge Paul Niemeyer, appointed by George H.W. Bush, dissented.
A Republican appointee, however, was part of the majority in the Tenth Circuit. Judge Jerome Holmes, appointed by George W. Bush, joined Clinton appointee Judge Carlos Lucero in striking down bans this summer in Utah and Oklahoma. Judge Paul Kelly Jr., appointed by George H.W. Bush, dissented.
A former partner at Jones Day and solicitor general for Ohio, Sutton was confirmed to the Sixth Circuit in 2003. In recent years, his name was included on lists of possible nominees for the U.S. Supreme Court should a Republican take the White House.
After graduating from Ohio State University Michael E. Moritz College of Law, Sutton clerked for Justice Antonin Scalia and the late Justice Lewis Powell Jr. He also clerked for the late Judge Thomas Meskill of the Second Circuit, a Republican.
Democrats opposed Sutton’s nomination to the appeals court, pointing to arguments he’d made in court about limiting the scope of the Americans With Disabilities Act, according to published reports.
“Before argument occurred, if a proponent of ACA could pick a single appellate judge they would not want to have ruling on this case, it would be Judge Jeffrey Sutton,” Simon Lazarus, public policy counsel to the National Senior Citizens Law Center, told The National Law Journal at the time. “His opinion will be important not just because he will be viewed by conservative members of the Supreme Court as an ideological comrade in arms, but [because he will be viewed] by Chief Justice [John] Roberts as an intellectual peer.”
In the same-sex marriage cases, Sutton expressed skepticism at the states’ reasons for banning same-sex marriage. If modern conceptions of marriage had more to do with “love, affection and commitment” than procreation, he said, “it does start to get a little difficult to see the difference between the one group eligible and the other group not.”
Sutton, however, focused on two issues that could spell trouble for groups challenging the bans.
During the first round of Sixth Circuit arguments, which concerned a Michigan constitutional amendment banning same-sex marriage, he pressed both sides to explain how the court should act in light of a one-sentence ruling from the U.S. Supreme Court in 1972 dismissing an appeal of a case challenging Minnesota’s same-sex marriage ban.
Sutton asked the lawyer for the same-sex couples in the Michigan case, Carole Stanyar, to explain how the court was not “stuck” with the high court’s 1972 ruling in Baker v. Nelson.
Stanyar replied that the court was bound by that ruling unless there were later “doctrinal developments.” She cited last year’s Supreme Court opinion in United States v. Windsor striking down a section of the federal Defense of Marriage Act as one such development.
In court on Wednesday, Sutton repeatedly questioned why same-sex marriage supporters wanted their victory to come from the courts, as opposed to state legislatures.
Defenders of the bans have argued the cases are more about the rights of states to define marriage than about the issue of same-sex marriage. “This case is not about whether Texas should recognize same-sex marriage,” lawyers for Texas wrote in their Fifth Circuit brief, filed on July 28. “It is about the question of who decides.”
The challengers have countered that banning same-sex marriage is unconstitutional, a conclusion reached by federal trial judges across the country over the past year.
Sutton wouldn’t be the first prominent Ohioan to cut against his political pedigree on the issue of same-sex marriage. Sen. Rob Portman, R-Ohio, announced his support for same-sex marriage in a March 2013 op-ed, which revealed that his son came out to him as gay two years earlier.
“Ronald Reagan said all great change in America begins at the dinner table, and that’s been the case in my family,” Portman wrote in The Columbus Dispatch. Portman urged the courts to stay out of the issue and let change come through the democratic process in the states.