Judge on the Spot by Linda Greenhouse

During the month that followed the Supreme Court’s refusal to take up any of the same-sex marriage cases that awaited the start of the new term on Oct. 6, I filled an occasional idle moment with this thought: What would it be like right now to be Jeff Sutton?

The court’s unexpected non-action made Jeffrey S. Sutton, hardly a household name but a very well-known federal appeals court judge, the judge of the hour. I’m not making the exaggerated claim that he held the future of same-sex marriage in his hands; the tide of history now running in favor of equality is greater than any one judge or group of judges, and will eventually swamp those who stand in its way. But history is open-ended and a Supreme Court term is finite. I’m offering the more modest claim that on the first Monday of October, Judge Sutton became the one person in the country with the power to make the question of same-sex marriage eligible, in the minds of the justices, for timely Supreme Court review.

As of Oct. 6, there was no conflict among the federal appellate circuits on the question of whether the Constitution granted a right to marry someone of the same sex. All three circuits that had ruled had said yes: the Fourth Circuit, striking down Virginia’s law; the Seventh Circuit (Indiana and Wisconsin); and the 10th Circuit (Oklahoma and Utah). A three-judge panel of the Sixth Circuit, including Judge Sutton, had heard a consolidated argument two months earlier in cases from Ohio, Michigan, Kentucky and Tennessee.

I didn’t attend the Aug. 6 argument at the federal courthouse in Cincinnati, but those who did came away uniformly of the opinion that the panel would be split. One judge, Martha Craig Daughtrey, was clearly unpersuaded by the states’ defense of their same-sex marriage bans, while another, Judge Deborah L. Cook, spoke little but seemed a clear vote to uphold the laws. Judge Sutton was in the middle, a likely vote for the states but not a sure bet for either side.

Then in mid-September, with the Sixth Circuit case still undecided and the clock ticking toward the opening of the Supreme Court term, the increasingly chatty Justice Ruth Bader Ginsburg told a law school audience in Minneapolis that unless and until the Sixth Circuit departed from the other circuits’ pattern, there was “no need for us to rush” into the debate. But “there will be some urgency,” she said, if the Sixth Circuit were to rule the other way and create a circuit conflict — the chief marker of a case the justices deem worthy of their attention. (Although not always: Recall the justices’ unseemly move earlier this month to accept the latest challenge to the Affordable Care Act.) Over to you, Jeff Sutton. . .

And now, as the days after the first Monday crept by, the spotlight was back; hence my Jeff Sutton musings as October turned to November. Then on Nov. 6, exactly a month after the Supreme Court denied review in the earlier cases, the Sixth Circuit issued its opinion, DeBoer v. Snyder. As forecast, Judge Cook voted to uphold the four states’ laws and Judge Daughtrey voted to strike them down. And there was Judge Sutton, writing the majority opinion in favor of the states. He maintained that the appeals court had no choice but to rule against same-sex marriage because the Supreme Court itself had settled the question 42 years ago by means of an unsigned one-line order in a case called Baker v. Nelson.

What a disappointment.

http://www.nytimes.com/2014/11/27/opinion/judge-on-the-spot.html?hp&action=click&pgtype=Homepage&module=c-column-top-span-region&region=c-column-top-span-region&WT.nav=c-column-top-span-region&_r=0