Surely it’s a coincidence, but Sutton’s gussied-up opinion could be a dandy Senate Judiciary Committee exhibit when a GOP president – maybe in 2017 – gets to fill a Supreme Court seat. Sutton will turn 57 that year, an eminently eligible age for the nation’s highest court.
For instance, Sutton’s opinion includes conservative cues, such as “original meaning” (of the Constitution), and a mom-and-apple-pie reference, more typical of July 4 speeches than federal court rulings, to the “real people who teach our children, create our jobs, and defend our shores.” The opinion is also audacious — in its sophistry. Sutton, writing about Supreme Court rulings in cases of alleged discrimination, said that court’s “dominant theme … is to end otherness, not to create new others.” Yet creating “others” — treating gay Ohio couples differently than other Ohio couples — is precisely what the state of Ohio does. Sutton, given the chance to end that “otherness,” to do what he says the Supreme Court wants done, ducked. As an evader of responsibility, Sutton could give Pontius Pilate a run for the money.
Close to 20 times, Sutton cited facets of the post-Civil War Fourteenth Amendment. It made ex-slaves citizens and extended the Bill of Rights to curb state governments’ assaults on people’s freedom. Sutton also wrote warmly of “elected legislators” and “democratic control.”
Smart as Sutton is, he has to know what Ohio’s “elected legislators” did with the Fourteenth Amendment. In 1867, the General Assembly ratified the amendment. A year later, in 1868, a newly elected General Assembly repealed Ohio’s ratification. Reason, according to the Ohio History Connection’s Ohio History Central? “Fear among a substantial number of white Ohioans that African Americans were receiving too many rights” — as if freedom can be rationed in ounces and inches.
Ohio’s 1868 “rescission” had no legal effect, but it showed what a Statehouse legislative majority can do in Columbus when it’s in the mood to slap a minority around. There are factual and philosophical reasons why black Americans’ struggles for racial justice should not – cannot – be likened to the struggle of gay or lesbian Americans for workplace and family equity. But President Obama said in his second inaugural address that “our journey is not complete until our gay brothers and sisters are treated like anyone else under the law.” In that sense, one of the only ideological differences between Ohio’s 1868 “rescission” of the Fourteenth Amendment and Ohio’s 2004 gay-marriage bans is … 136 years.
Sutton’s bottom line appears to be that till the legislature reconsiders Substitute House Bill 272, Ohio’s law banning gay-marriage, or till voters reconsider State Issue 1, Ohio’s constitutional ban — or till the Supreme Court does what Sutton and Cook won’t do — gay or lesbian Ohioans should keep their lives, and their families’ lives, on hold. If that’s “justice,” Sutton’s and Cook’s courtrooms need new dictionaries.
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