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Court breaks ranks, upholds marriage bans

WASHINGTON (BP) — A federal appeals court upheld state laws that refuse to recognize same-sex marriage Thursday (Nov. 6), seemingly preparing the way for the U.S. Supreme Court to decide a contentious issue it has avoided so far.

In a 2-1 opinion, a panel of the Sixth Circuit Court of Appeals in Cincinnati broke ranks and ruled four states — Kentucky, Michigan, Ohio and Tennessee — did not violate the U.S. Constitution by limiting marriage to the union of a man and a woman. The decision conflicts with rulings by four other federal appeals courts that struck down state laws that prohibited gay marriage.

The same-sex couples who lost could ask for “en banc” review of the ruling, which would include all the members of the Sixth Circuit Court, or they could appeal to the Supreme Court. If they take the latter course and the justices grant review, the high court could issue a decision on the constitutionality of same-sex marriage before its current term ends next summer. Both sides of the legal battle have urged the Supreme Court to rule soon on the matter.

Advocates for the biblical, traditional definition of marriage welcomed the Sixth Circuit’s opinion and the opportunity for the Supreme Court to make a final decision.

“We applaud the decision of the Sixth Circuit Court, breaking a string of decisions by activist judges and courts who have imposed their personal belief systems on the public,” Frank S. Page, president of the Southern Baptist Convention Executive Committee, said in a statement. “We pray that the Supreme Court will take up this matter and, specifically, that it will uphold the definition of marriage as the union of one man and one woman.”

Russell D. Moore, president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC), said in a written statement, “This circuit split means that the Supreme Court’s ignoring of this issue will not be able to continue. The people of the states have the right to recognize marriage the way virtually every human culture has, as the union of a man and a woman. The Supreme Court should affirm this right, for all fifty states.”

Byron Babione, senior counsel with Alliance Defending Freedom, said in written release, “As the [Sixth] Circuit rightly concluded, the Constitution does not demand that one irreversible view of marriage be judicially imposed on everyone. The people of every state should remain free to affirm marriage as the union of a man and a woman in their laws.”

A leading supporter of gay marriage criticized the Sixth Circuit opinion and predicted it would be overturned. Evan Wolfson, president of Freedom to Marry, said it is “out of step” with a recent action by the Supreme Court, “out of step with the constitutional command as recognized by nearly every state and federal court in the past year, and out of step with the majority of the American people. This anomalous ruling won’t stand the test of time or appeal.”

The Supreme Court has refused so far to review appeals court decisions invalidating state laws barring gay marriage. The Sixth Circuit’s opinion, however, establishes a clash at the appellate level the justices apparently were waiting on before being willing to rule. Previously, the Fourth, Seventh, Ninth and 10th circuit courts had ruled in favor of same-sex marriage.

On Oct. 6, the high court denied review of appeals court decisions overturning marriage laws in five states. That order not only meant gay marriage would be legal in those five states but, by extension, in six other states in the same federal circuits. That action — plus an appeals court ruling the next day — set the stage for legalized same-sex marriage to expand to 35 states plus the District of Columbia. Before, it had been legal in 19 states and D.C.

Given its past actions, the current Supreme Court appears highly unlikely to permit state bans on same-sex marriage. The Sixth Circuit majority acknowledged the legalization of gay marriage appears inevitable.

It seems “the question is not whether American law will allow gay couples to marry; it is when and how that will happen,” Jeffrey Sutton wrote for the majority in the Sixth Circuit’s split decision. “That would not have seemed likely as recently as a dozen years ago. 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.”

The three-judge panel does not have the choice of deciding “whether gay marriage is a good idea,” Sutton wrote. Instead, it must determine whether the Constitution bars a state from defining marriage as only between a man and a woman, he said.

States are permitted by Supreme Court precedent to define marriage, Sutton said. It is better if state voters or legislatures instead of judges determine an issue — marriage, in this case — that has traditionally been in their purview, he explained.

“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,” Sutton wrote. “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.”

The Sixth Circuit opinion came after a nearly complete judicial sweep by gay marriage proponents in the last 17 months. Courts have issued more than three dozen opinions in favor of same-sex marriage since the justices struck down a section of the federal Defense of Marriage Act in June 2013, saying it violated “equal protection” under the Constitution by refusing to recognize same-sex marriages. Though the high court refused to say states could not limit marriage to heterosexual couples, most courts have used the decision as a basis for striking down state laws that define marriage as only between a man and a woman. Only a handful of decisions by federal and state judges conflict with the pro-gay marriage trend.

The voters of Kentucky, Michigan, Ohio and Tennessee all approved constitutional amendments between 2004 and 2006 that limited marriage to a man and a woman.

In Sutton’s opinion, the Sixth Circuit majority echoed some of the arguments made by defenders of man-woman marriage in its reasoning. The decision included these determinations:

— State laws limiting marriage to a man and a woman have a rational basis. “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.”

— The marriage laws of the four states do not demonstrate hatred toward homosexuals. “[I]f there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.”

— No fundamental right to marriage can be found in the Constitution. “[T]he right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognizing a fundamental right to same-sex marriage does not exist.”

— Gays and lesbians do not qualify as a classification lacking in political power. Though homosexuals have been discriminated against in the United States, the dual facts that traditional marriage has existed for thousands of years and laws barring same-sex unions are of recent origin “prevents us from inferring from history that prejudice against gays led to the traditional definition of marriage in the same way that we can infer from history that prejudice against African Americans led to laws against miscegenation.”

The expansion of same-sex marriage in the states has resulted in a growing clash between the rights of gay couples and the religious freedom of individuals and organizations. Photographers, florists, bakers and other business owners who oppose serving in support of same-sex wedding ceremonies are facing penalties for their refusal. The legal conflict raises questions about whether additional legislation is required to protect religious liberty and conscience rights.

Same-sex marriage was one of the topics of the ERLC’s national conference — “The Gospel, Homosexuality, and the Future of Marriage” — Oct. 27-29 in Nashville. The Vatican has invited Moore to speak at an international symposium on the “complementarity of man and woman” in marriage Nov. 17-19 in Vatican City.

Author: Tom Strode

Tom Strode serves as Washington correspondent for Baptist Press.

View more articles by Tom Strode.

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