Timothy Dugdale, Six Degrees of Sutton
Amongst my LGBT friends, the name Jeff Sutton gets their blood boiling or running cold. Sutton wrote the majority opinion in the Sixth Circuit gay marriage case that has now set up the Supreme Court day of reckoning on April 28. Sutton’s sheepish defense of states’ rights and political process stands in stark contrast to Posner’s barbed outrage in his celebrated Seventh Circuit opinion. People also should remember, however, that Sutton wrote the opinion on Obamacare that endorsed the inter-state commerce of ACA, a ruling that helped save the president’s signature piece of legislation.
Now that Obama‘s other showstopper, his Executive Action initiative on immigration, has been stopped by a conservative bulldog down in Texas, the new Congress is taking action not only against the substance of the president’s plan but a ruling by none other than Jeff Sutton. In Romeike v. Holder (2013), Sutton denied the petition for review of a German couple seeking asylum in the US because they claimed they faced discrimination in Germany for homeschooling their kids. Sutton was unimpressed. “Even assuming for the sake of argument that faith-based homeschoolers (or for that matter homeschoolers in general) are a cognizable social group, a matter we need not resolve, “[t]he record does not show that the compulsory school attendance law is selectively applied to homeschoolers like the applicants,” or that “homeschoolers are more severely punished than others whose children do not comply with the compulsory school attendance law.”
Sutton’s ruling must had conservatives foaming at the mouth and now in The Asylum Reform and Border Protection Act (HR 1153; 2015), they look to soothe their rabid souls with very generous asylum provisions for foreign homeschoolers. The rest of the Act is a nativist wet dream in which the expedited removal system is tweaked to make asylum claims for anyone else much tougher and puts new limits on parole and humanitarian parole. If this thing becomes law, refugees best arrive at customs with home schooling materials in hand.
Timothy Dugdale, Ph.D.