Article

6th Circuit delivers a win for citizens to define marriage

Nov 6, 2014

Late this afternoon, the 6th Circuit Court of Appeals upheld the rights of citizens to define marriage in Kentucky, Tennessee, Michigan, and Ohio.

In a 2-1 ruling, Judges Jeffrey Sutton and Deborah Cook bucked national trends, siding with citizens and their rightful constitutional authority to define marriage.

I want to spare readers the thick legal arguments made and highlight a few relevant portions of the ruling that assert the validity of state marriage laws that define marriage as the union of a man and woman. At a time when most justices write marriage opinions with rhetorical flourishes, Sutton and Cook demonstrated great judicial restraint, which is commendable. As they note in the very opening of their opinion, the question before the court is about “change—and how best to handle it under the United States Constitution.”

A few relevant portions of their ruling:

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: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman? (8)

What may be the most assuring portion of the ruling comes on pages 19-20:

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. Hesitant, yes; but still a rational basis, some rational basis, must exist for the definition. What is it? Two at a minimum suffice to meet this low bar. 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. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.

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. One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means. 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. Dandridge v. Williams, 397 U.S. 471, 486–87 (1970).

Sutton and Cook go on to further state the rational basis for marriage laws:

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 over an issue they have regulated from the beginning. (21)

[…]

How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage? A State still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere. Even today, the only thing anyone knows for sure about the long-term impact of redefining marriage is that they do not know. A Burkean sense of caution does not violate the Fourteenth Amendment, least of all when measured by a timeline less than a dozen years long and when assessed by a system of government designed to foster step-by-step, not sudden winner-take-all, innovations to policy problems. (21)

On page 23, the justices expose a glaring inconsistency in the argument about whether to redefine marriage, namely whether the definition of same-sex marriage that’s advanced by activists holds up to its own logical coherence. The justices believe it does not.

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. Plaintiffs have no answer to the point. What they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage. The predicament does not end there. No State is free of marriage policies that go too far in some directions and not far enough in others, making all of them vulnerable—if the claimants’ theory of rational basis review prevails. (23)

This is a sturdy ruling, one that deserves to be read for its willingness to inject logical argument into the question about marriage’s definition. This decision reaffirms what may be the most overlooked principle in the question about redefining marriage: No situation experienced by same-sex couples necessitates the redefinition of marriage. All of the situations that supposedly demand redefinition can be remedied apart from redefinition. That’s the purpose of public policy, which is to address some citizens’ needs in an equitable manner that does justice to other citizens and their constitutional rights to make policy.

While the outcome of today’s ruling will likely result in an eventual ruling from the Supreme Court, those concerned about the state of marriage in America should continue to advocate for the truth about marriage and the authority to make marriage policy in their states.

They end on a call to act and do what is it that citizens in a free country do: To settle issues as citizens.

In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. 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.

Ed Whelan of the Ethics and Public Policy Center in Washington, D.C. has excellent analysis of the overall arguments available at National Review, which I commend.

For resources related to same-sex marriage, be sure to visit the ERLC’s YouTube channel to view all the resources from our recent national conference titled “The Gospel, Homosexuality, and the Future of Marriage.