A three-judge panel of the 6th U.S. Circuit Court of Appeals on Thursday stunningly affirmed the rights of voters in four states – Kentucky, Michigan, Ohio and Tennessee – to define marriage as the union of one man and one woman, throwing a boulder into the millpond of complacent assumptions by homosexual-rights advocates that same-sex marriage is a given across the United States.
The U.S. Supreme Court recently has refused to take on any same-sex marriage cases, allowing the movement to expand into about 30 states.
But Mat Staver, chairman of Liberty Counsel, which has fought on behalf of traditional marriage, said that now may change.
“With a divide in the appeals court rulings, the Supreme Court will likely take up the issue,” he said.
Previous rulings from the high court on the issue have found that the institution is necessarily defined as the union of one man and one woman. In 1942, it said marriage is “fundamental to the very existence and survival of the race.” In 1888 it ruled, “An institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.”
Staver said marriage “is not merely a creation of any one civilization or its statutes, but is an institution older than the Constitution and, indeed, older than any laws of any nation.”
“Marriage is a natural bond that society or religion can only ‘solemnize,’” he said.
The 6th Circuit agreed in a 2-1 decision, concluding no federal judges should be making such a decision.
“Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us – just two of us in truth – to make such a vital policy call for the thirty-two million citizens who live within the four states of the Sixth Circuit.”
The pro-homosexual Marriage Equality organization called the ruling “out of step with the decisions of 40 other courts.”
The organization said states as diverse as “Oklahoma, West Virginia, and Utah” recently have “embrace[d] marriage equality.”
“It is clear that the freedom to marry is a fundamental constitutional right that belongs to all Americans, not just some Americans,” said spokesman John Lewis.
But the organization did not note that a vast majority of the states that have “embraced” same-sex marriage have done so largely by judicial decree, after voters in many of those states specifically chose to define in their laws or even constitution marriage as one man and one woman.
Before federal judges stepped in, the wave of state affirmations of traditional marriage was virtually unstoppable, with victories in 31 of 31 elections.
Critics have argued that if the traditional definition is dropped, there would be no legitimate reason to continue bans on incest or polygamy.
That opinion was included in a legal decision in California, where judges created same-sex marriage.
State Supreme Court justice Marvin Baxter, writing a dissent, said: “The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy. … Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous.
“Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.”
“Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?”
The 6th Circuit said: “A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the states…. One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children.”
And the judges wrote: “Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them…. People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues.”
There is a logic behind traditional marriage, they said.
“What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the states created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the states of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the states to retain authority.”
Byron Babione, senior counsel for the Alliance Defending Freedom, said: “The people of every state should remain free to affirm marriage as the union of a man and a woman in their laws. As the 6th Circuit rightly concluded, the Constitution does not demand that one irreversible view of marriage be judicially imposed on everyone. The 6th Circuit’s decision is consistent with the U.S. Supreme Court’s acknowledgement in Windsor that marriage law is the business of the states.”
The ruling from the 6th Circuit reversed district court rulings that had struck down gay marriage bans in Michigan, Ohio, Kentucky and Tennessee.
It conflicts with rulings from the 4th, 7th, 9th and 10th circuits.
Circuit Judge Jeffrey Sutton, described by USA Today as one of the Republican Party’s most esteemed legal thinkers and writers, issued the 42-page decision. Deborah Cook concurred.
Sutton noted a one-sentence Supreme Court ruling from 1972 also “upheld the right of the people of a state to define marriage as they see it.”
Sutton concluded: “Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”
Tony Perkins, president of the Family Research Council, said: “We applaud the U.S. Court of Appeals for the Sixth Circuit for upholding the freedom of the people to define marriage as the union of a man and woman. The Sixth Circuit rightly recognizes that the Constitution does not demand that this modern redefinition of marriage be forced on the States. The American people simply will not accept a nationwide redefinition of marriage imposed on them by a judicial oligarchy.
“As the debate continues, recent polls and the election demonstrate that support for marriage redefinition is stalling as Americans begin to experience and consider the consequences for religious freedom, free speech, and parental rights.”
“Where marriage is redefined, parents are increasingly finding a wedge being driven between them and their children as school curricula is changed to contradict the morals parents are teaching their children. And as more and more people lose their livelihoods because they refuse to not just tolerate but celebrate same-sex marriage, many Americans are beginning to see that this is about far more than the marriage alter, but is about fundamentally altering society.”