(Reuters) - In 2011, Judge Jeffrey Sutton of the 6th U.S. Circuit Court of Appeals surprised and disappointed many fellow conservatives by voting to uphold President Obama’s healthcare overhaul.
On Thursday, he reaffirmed his standing as one of the U.S. judiciary’s leading conservative voices by upholding laws against same-sex marriage in Kentucky, Michigan, Ohio and Tennessee.
In leading a 2-1 majority, in which he said the definition of marriage should be decided by voters and legislatures rather than unelected judges, Sutton made the 6th Circuit the first of five federal appeals courts to rule against same-sex marriage.
The decision substantially raises the likelihood the U.S. Supreme Court may decide the issue, perhaps in its current term.
And it also cements Sutton’s status as a dedicated advocate for states’ rights, one who has been thought of as a candidate for a Supreme Court vacancy in a Republican administration. The 54-year-old graduated from Ohio State University law school and clerked for Supreme Court Justice Antonin Scalia.
“It improves his standing among conservatives, which he probably needed after the healthcare decision,” said Dale Carpenter, a law professor at the University of Minnesota, referring to Thursday’s decision. “The decision is probably the most well-written and reasoned opinion from a federal court rejecting same-sex marriage.”
Sutton was nominated to the bench by President George W. Bush in 2001, but strong opposition delayed his confirmation until 2003. The U.S. Senate vote for confirmation was 52-41.
During his confirmation hearing, Sutton explained that as a judge he would try to see the world in “other people’s eyes.”
To an extent, he tried to do that in 2011 in explaining why he would not void the Affordable Care Act.
“Individuals lose jobs and obtain jobs, and the value of their assets goes up and goes down, making it appropriate (if perhaps unfair) to regulate this entire group together,” he wrote. “The Commerce Clause permits Congress to make flawed generalizations, and that at most is what might be said about the overbreadth of this law.”
And in Thursday’s decision, Sutton called it the prerogative not of judges or lawyers but the people, “gay and straight alike,” to work with each other to “resolve a new social issue in a fair-minded way.”
Michael Gerhardt, a law professor at the University of North Carolina in Chapel Hill, said: “(Sutton) also has a very healthy regard for federalism, and is very protective of federal overreaching into state prerogatives. That’s where this decision fits in: under existing law, he won’t force localities to marry people they don’t want to marry.”
Sutton’s decision also put him at odds on same-sex marriage with another prominent judicial conservative, Circuit Judge Richard Posner in Chicago.
In striking down Indiana’s and Wisconsin’s bans on the practice two months ago, Posner called the states’ defenses of their laws “not only conjectural; they are totally implausible.”
Sutton has expressed reverence for Posner, writing in a 2010 review of Posner’s book “How Judges Think” for the Michigan Law Review: “I often look to him for insights in resolving difficult cases of my own, telling my clerks, ‘See if Posner has written anything on the topic.’ Other judges, I suspect, do the same thing, and if not they should.”
They still do. But it was Sutton’s 6th Circuit colleague, Martha Craig Daughtrey, who ended up citing Posner approvingly by name in Thursday’s same-sex marriage decision. She dissented.
Reporting by Jonathan Stempel in New York; Editing by Lisa Shumaker