Believe it or not, there may be some good news for those of us who believe in defining marriage as a union between a man and a woman. In late October, United States District Judge Juan Perez-Gimenez upheld the Puerto Rican law defining marriage as the union of a man and a woman. Last week the United States Court of Appeals for the Sixth Circuit ruled, 2-1, that measures in Michigan, Ohio, Kentucky, and Tennessee limiting marriage to one man and one woman were constitutional. In both instances, the decisions held that the Supreme Court’s decision in United States v. Windsor, which struck down the federal Defense of Marriage Act, allows for states to define marriage.
Perez-Gimenez stated in his decision, “The Windsor opinion did not create a fundamental right to same gender marriage nor did it establish that state opposite-gender marriage regulations are amenable to federal constitutional challenges. If anything, Windsor stands for the opposite proposition: it reaffirms the State’s authority over marriage, buttressing Baker‘s conclusion that marriage is simply not a federal question.”
Baker v. Nelson, the other decision cited above, was a 1972 case in Minnesota in which the Minnesota Supreme Court ruled that a Minnesota law limiting marriage to a man and a woman did not violate the Constitution. Baker appealed, but the Supreme Court of the United States (SCOTUS) dismissed the appeal “for want of a substantial federal question.” Because of the way in which Supreme Court cases work, the Baker case went to the Supreme Court by way of mandatory appellate review. The refusal of SCOTUS to hear the case therefore became precedent because the refusal to hear the case was considered a decision on the merits of the case. This is important, because Perez-Gimenez explained that the Windsor case did not overturn Baker but rather complements it. “Windsor and Baker work in tandem to emphasize the States’ ‘historic and essential authority to define the marital relation’ free from ‘federal intrusion.'”
The Sixth Circuit decision came after a refusal by SCOTUS on October 6 to hear appeals from states that have had their traditional marriage laws struck down by courts, making it an important decision and one that has received considerable attention and no doubt will continue to do so.
Perhaps even more encouraging to defenders of traditional marriage than either decision in and of themselves, though, is the fact that both decisions take aim at the position of those who argue that homosexual marriage is a constitutional right. Perez-Gimenez wrote, “It takes inexplicable contortions of the mind or perhaps even willful ignorance–this Court does not venture an answer here–to interpret Windsor‘s endorsement of the state control of marriage as eliminating the state control of marriage.”
Judge Jeffrey S. Sutton wrote the majority decision in the Sixth Circuit case. He stated early in his decision that recent decisions are mostly ignoring a very, very long history of defining marriage as between a man and a woman. “For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world,” Sutton wrote. Sutton also wrote that it is not the place of the judges of the Sixth Circuit to make policy decisions for the citizens living in its circuit; rather, its purpose is to interpret laws vis-a-vis the existing laws and precedents, of which Baker still is one. This is a breath of fresh air coming from a federal bench, especially since so many courts seem more than happy to assume the role of making, rather than interpreting, laws. Sutton went on to write, “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.”
This element of Sutton’s decision is a unique perspective on the issue, as far as I know, and I think it is going to prove to be a very important component of future cases dealing with the definition of marriage:
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. This 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. This explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.
The reason why this is so important is that is establishes that states do have a compelling interest in defining marriage as between a man and a woman–something that others have argued is not the case. If states have no compelling interest to define marriage as between a man and a woman, the argument goes, then states have no reason or justification for restricting marriage to a man and a woman other than legalized discrimination. So keep an eye on this rationale, because it is going to be extremely important.
Sutton went on to reinforce his point by writing this: “If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.” This is, of course, one of the keystone elements of the argument I have been making against homosexual marriage all along; if we change the definition of marriage to be other than between a man and a woman we eliminate any justification for prohibiting any definition of marriage, whether male-male, female-female, adult-child, human-animal, multiple spouses, etc. Albert Mohler included this observation in his blog post on the Sixth Circuit decision: “He [Sutton] also recorded that in the oral arguments the attorneys arguing for same-sex marriage had been unable to answer his question [as to why marriage should be defined in terms of monogamy]. They could not, he stated, because the only argument they could advance was moral tradition. They could not cite moral tradition as the authority for monogamy because they argued that moral tradition was not a rational basis for law when it came to limiting marriage to a man-woman union.”
Perez-Gimenez stated in his decision, “The people and their elected representatives should debate the wisdom of redefining marriage. Judges should not.” Similarly, Sutton wrote, “The theory of the living constitution rests on the premise that every generation has the right to govern itself. If that premise prevents judges from insisting on principles that society has moved past, so too should it prevent judges from anticipating principles that society has yet to embrace.” In other words, both judges are taking a stand for courts restricting themselves to interpreting law and letting the people make the decision about how marriage is defined. Interestingly, this is exactly what the Windsor decision meant, as well.
Mohler closed his blog with this statement: “Sometimes the right argument just has to be made, even if it does not win at any given hour. The truth will stand the test of time, and Judge Sutton deserves our gratitude and respect for making an argument in defense of both marriage and the Constitution–and for making it so well.” I echo his sentiment, and would add Judge Perez-Gimenez to that, too. In the words of Galatians 6:9, let us not grow weary in doing what is good–and in this situation, it means continuing to take a stand for marriage as God defined it, and praying for those judges who are courageous enough to defend the right of the people to make that determination.
THINKING OUT LOUD 