After a month of gloom ever since the Supreme Court’s denial of certiorari in several same-sex marriage cases on October 6, there came last Thursday, November 6 the welcome news that a 2-1 majority of a Sixth Circuit panel had upheld the marriage laws of Michigan, Ohio, Kentucky, and Tennessee. Judge Jeffrey Sutton has been rightly praised (here and here at NRO, for instance) for the clarity and persuasiveness of his opinion for the majority in DeBoer v. Snyder.
What has been less remarked is the astonishingly poor quality of the dissent written by Judge Martha Craig Daughtrey. Some commentators have pointed out that her 22-page opinion begins with snark (“The author of the majority opinion has drafted what would make an engrossing TED talk or, possibly, an introductory lecture in Political Philosophy”), and ends with the insinuation that her colleagues have violated their oath of office by declining “to right fundamental wrongs.”
But I have not seen anyone point out that it is Daughtrey who seems not to grasp the oath she quotes, requiring judges to “administer justice without respect to persons.” That not only means that the rich and powerful get no favored treatment. It means, more generally, that every claim brought into court is viewed dispassionately, with detachment, without presuppositions about where justice lies, with the claims of the litigants measured by accepted norms of law.
Judge Sutton’s opinion for the court in DeBoer is a model of exactly that dispassionate detachment. But Judge Daughtrey’s opinion is driven not by legal reasoning but by passionate outrage. It is acceptable for a judge, especially in dissent, to give voice, even in a kind of prophetic mode, to passionate denunciation of error and injustice. But such denunciation should follow from dispassionate legal analysis proving one’s side of an argument. Hammering home one’s conclusions passionately is fine. But if one’s premises begin in passion, not in reason, fallacies, errors, and sloppy argumentation will probably result.
From the beginning, Judge Daughtrey betrays herself in just this way. She writes on her first page that the majority fails to “recogniz[e] the plaintiffs as persons, suffering actual harms as a result of being denied the right to marry.” One’s hair should stand on end upon reading this, for the entire purpose of a legal case like this one is to determine whether a harm has occurred because a right exists and a power has illegitimately infringed that right. Rights and powers, harms and remedies: these are the conclusions in law for a decision such as this. Daughtrey has made a presumed “right” and a “harm” to that right the major premise of her argument, and thus begun her entire opinion by begging the question in the case. Is there a constitutional “right to marry” that extends to couples of the same sex? Have the plaintiffs been harmed at all? Sutton’s opinion asks these questions and answers them. Daughtrey “knows” already, and can’t be bothered to support her presuppositions.
Of course, there is a subtle but vital difference between “harm” in the legal sense and “feeling aggrieved” in some psychological sense. Daughtrey conflates the former with the latter, a move confirmed a page later when she complains that the question “But what about the children?” is ignored by the majority. Then she delivers herself of an extended discourse on the circumstances of the plaintiffs in the cases reviewed by the court. But this, as every student of logic and rhetoric knows, is a fallacy, the argumentum ad misericordiam, an argument that we should be moved by pity or compassion for someone whose situation is portrayed as pitiable. But the question “what is justice?”—much less the narrower question “what is the law of the Constitution?”—is not answered by asking another question, “how much do you feel sorry for the plaintiffs when I describe them sympathetically?” It’s a classic move in the closing arguments of personal injury lawsuits, but it has no place in constitutional law.
Daughtrey’s opinion does not get any better after these opening gambits. Her best bits are simply borrowed from other judges’ recent opinions in same-sex marriage cases, with her heaviest reliance on the sprightly prose and bad reasoning of Judge Richard Posner of the Seventh Circuit. Perhaps she could not be bothered to do her own thinking “[b]ecause the correct result is so obvious,” as she herself puts it. When she does offer us something that passes for thinking, it’s an empty truism like this: “the courts are assigned the responsibility of determining individual rights under the Fourteenth Amendment, regardless of popular opinion or even a plebiscite.” Well . . . yes. Now can you tell us why you think some “individual rights under the Fourteenth Amendment” have been violated by a plebiscite conforming to the understanding of marriage that has characterized the law for many centuries? Um . . . no. She cannot.
It seems to have something to do with “progress,” though. In a particularly lame response to Judge Sutton’s analysis of whether the original meaning of the Constitution is any help to the plaintiffs (and of course it is not), Judge Daughtrey complains that Sutton refers to what “the people who adopted the Fourteenth Amendment understood it to require,” and then writes: “The quick answer is that they undoubtedly did not understand that it would also require school desegregation in 1955 or the end of miscegenation laws . . . culminating in the Loving decision in 1967.”
Really? Has Judge Daughtrey so completely checked out of the world of legal scholarship as not to know there are serious scholarly arguments that Brown v. Board of Education and Loving v. Virginia represent the original understanding of the Fourteenth Amendment? There are active debates to this day with respect to whether those arguments hold water. But they do exist and are taken seriously.
Why would Judge Daughtrey write so dismissively of the search for the original meaning of the Fourteenth Amendment? Very simply, because it is a) traditional to undertake such a search, especially in cases under any provision of the Constitution where there is a question of breaking new ground, and b) because it gets in her way. It is fatal to her ideological project of imposing same-sex marriage on the country by means of judicial review.
Readers of Judge Sutton’s opinion, taken with his clear reasoning and his elegant prose, might not have noticed something else about it on their first reading of it. It is customary, in either the body or the footnotes of the opinion for a divided court, for the author of the majority opinion to quote and (attempt to) rebut any published dissent. Judge Sutton never once stoops even to notice Judge Daughtrey’s dissent. He never even mentions the existence of a dissent in the case. Judge Sutton is evidently a gentleman. It is the greatest kindness he could have done Judge Daughtrey, to let her sloppy, fallacious, pounding-on-her-desk-with-fury opinion speak for itself, and refute itself. Any notice of it on his part would have been an unseemly piling on.