800px-United_states_supreme_court_building.pngWhen the Supreme Court last month declined to review seven lower court decisions against state laws and amendments defining marriage to be between a man and a woman it seemed as though the issue was settled (in court anyway).  Their lack of action on cases in the 4th, 7th and 10th Circuit Courts paved the way for same-sex marriage licenses to be issued several states such as Colorado, Kansas, Indiana, North Carolina, Oklahoma, South Carolina, Utah, West Virginia, Wisconsin, Virginia and Wyoming.  The Supreme Court later also allowed a 9th Circuit Court ruling striking down Idaho’s marriage law to stand.

Late last month, however, United States District Judge Juan Pérez-Giménez handed down a ruling in a case upholding Puerto Rico’s law defining marriage as the union of one man and one woman.  He wrote in his ruling:

There are some principles of logic and law that cannot be forgotten.

Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is ‘exclusively [an] opposite-sex institution… inextricably linked to procreation and biological kinship.’ Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.

Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial ‘wisdom’ may contrive methods by which those solid principles can be circumvented or even discarded.

A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is ‘minimal marriage,’ where ‘individuals have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties’ the blueprint for their design? […] It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on ‘the constitutional liberty to select the partner of one’s choice.’

Of course, it is all too easy to dismiss such concerns as absurd or of a kind with the cruel discrimination and ridicule that has been shown toward people attracted to members of their own sex. But the truth concealed in these concerns goes to the heart of our system of limited, consent-based government: those seeking sweeping change must render reasons justifying the change and articulate the principles that they claim will limit this newly fashioned right.

For now, one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law.

Just last week the 6th Circuit Court of Appeals which has jurisdiction in Kentucky, Ohio, Michigan and Tennessee upheld those states’ right to define marriage to be between a man and a woman.  Some excerpts of their 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,” (pg. 8)

“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,” (pg. 19-20).

“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,” (pg. 20-21)

“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 over an issue they have regulated from the beginning,” (pg. 21).

The 5th Circuit Court of Appeals is set to weigh in on Texas’ marriage law in January.  Texas Democratic legislators today filed a bill to repeal Texas’ current definition of marriage.  A federal district court judge has a stay on a ruling striking down Florida’s law until the 11th Circuit Court of Appeals can rule.  Supreme Court Justice Sonia Sotomayor put gay marriages on hold in Kansas after a federal district court judge overturned Kansas law citing a 10th Circuit Court of Appeals decision that the Supreme Court declined to review.  Missouri and Arkansas also have their laws defining marriage under judicial review.

Now that there are conflicting federal court decisions, in particular Circuit Court decisions this could compel the Supreme Court to finally rule on the issue.  At this point it’s anyone’s guess which way they’ll go as they’ve sent mixed messages on the issue.

1 comment
  1. It seems many of the judges are making up law as they go along. There are all sorts of problems with same gender marriage. One glaring problem is majority rule.
    We have been a country where we hold elections and they have meant something. This is no longer the case. Since there are civil ceremonies going way back, it would seem there should be books and books on why we have marriage between one man and one woman and nothing else, but that doesn’t seem to matter. We the people don’t count…Law history doesn’t count. But knowing that, doesn’t stop me from voting., or voicing what I know to be true.

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