Over the past year, the cascade of federal court rulings that favor same-sex “marriage” has lent credence to the view that progress is on the side of “marriage equality.” Now, 19 states and the District of Columbia permit same-sex couples to marry.
“More than two dozen federal and state court rulings since the Supreme Court’s United States v. Windsor decision in June 2013 have successfully challenged and/or nullified bans,” noted an Aug. 11 Time magazine report, which referenced the high court’s landmark Windsor decision that struck down part of the federal Defense of Marriage Act as unconstitutional.
Not so fast. A circuit court in Tennessee issued an Aug. 5 decision that found the state’s ban on same-sex “marriage” to be constitutional. Then, on Aug. 6, during lengthy oral arguments before the Sixth Circuit, a three-judge panel raised questions that suggested same-sex couples’ legal challenges to marriage laws in four states could be in question.
That is welcome news to those who defend state laws that define marriage as a union of one man and one woman — those who warn of the social, moral and political consequences of upending a bedrock social institution that serves as the sanctuary of human life.
Both the Tennessee court ruling, which backed a state law that does not recognize the “marriages” of same-sex couples solemnized in other states, and the oral arguments before the Sixth Circuit panel directed attention to two issues that have received short shrift in some decisions favoring “marriage equality.”
One question is: Who gets to decide marriage laws — the courts, the legislators or the voters? The second and more central question asks: Does the inclusion of same-sex couples radically redefine marriage?
“The court finds that marriage is a fundamental right. However, neither the Tennessee Supreme Court nor the United States Supreme Court has ever decided that this fundamental right under a state’s laws extends beyond the traditional definition of marriage as a union of (1) man and (1) woman,” stated Judge Russell Simmons Jr., of the Circuit Court of Roane County, Tenn., in a decision that upheld the state’s right to define marriage. The case was filed by a same-sex couple who “married” in Iowa and sought a divorce in Tennessee, which does not legally recognize such unions and so could not accommodate the requirements.
“The battle is not between whether or not marriage is a fundamental right, but what unions are included in the definition of marriage. The legislative branch of Tennessee and the voters of Tennessee have said that the definition of marriage should be as it always has been,” concluded Simmons.
Over the past year, federal courts that struck down state bans on same-sex “marriage” cited United States v. Windsor, which found that part of the Defense of Marriage Act — which defined marriage as a union of one man and one woman — violated the right to equal protection and due process. But Judge Simmons noted that Windsor only applied to federal law, not state law. He also cited an important legal precedent, Baker v. Nelson, a 1972 Supreme Court ruling, which “holds that a state’s law on same-sex marriage does not violate the equal protection or substantive due-process rights under the United States Constitution.” As the high court had never overruled Baker, even in Windsor, the judge noted, “The court therefore deems that Baker is still applicable.”
Baker was also cited in oral arguments before the Sixth Circuit, along with a strong pitch for a “rational basis” for retaining state laws that reserve marriage to opposite-sex couples.
The three-judge panel heard appeals from two states, Kentucky and Michigan, which petitioned for a reversal of lower-court decisions that struck down their voter-approved bans on same-sex “marriage,” and from two other states, Ohio and Tennessee, which argued that they should not be required to recognize same-sex unions legalized in other states.
One member of the panel expressed skepticism that the courts, rather than legislatures or voters, should make that determination. “I would have thought that the best way to get respect and dignity is through the democratic process,” observed Judge Jeffrey Sutton.
As The New York Times reported, the oral arguments went to the heart of the national debate on the meaning and purpose of marriage: “whether same-sex marriage is simply an expansion of a well-established fundamental right to marry, reflecting shifting social norms, and thus worthy of constitutional protection, or whether gay couples ‘seek recognition of a new right,’ as Kentucky argued.”
The four states said their marriage laws were based on a commonsense recognition that this social institution was designed to secure the rights of children.
“The state doesn’t have an interest in regulating friendships,” said Aaron Lindstrom, Michigan’s solicitor general. It is “rational for the state to have an interest in promoting marriage so that it will be more likely that a child … will have the benefits of having both a mother and father.”
Legal experts speculate that the four states are likely to win their cases before the Sixth Circuit, creating a split at the appellate level, and increasing the likelihood that the U.S. Supreme Court justices will agree to hear one or more cases on this issue within a year.
Yet, with Roe v. Wade as our guide, we know that any future Supreme Court decision on this matter will not be the definitive word. The passionate debate on the meaning and purpose of marriage will continue, because it is a matter of great importance to individual children, their parents, the Church and the future of this nation.
“A society that is careless about getting fathers and mothers together to raise their children in one loving family is causing enormous heartache,” said Archbishop Salvatore Cordileone of San Francisco, the U.S. bishops’ point man on marriage, in a 2013 published interview. It is time, he said, to recover deeper truths that have been lost.
“Our bodies have meaning. The conjugal union of a man and a woman is not a factory to produce babies; marriage seeks to create a total community of love, a ‘one flesh’ union of mind, heart and body that includes a willingness to care for any children their bodily union makes together,” said Archbishop Cordileone. “Two men and two women can certainly have a close, loving, committed emotional relationship, but they can never, ever join as one flesh in the unique way a husband and wife do.”
Editor's Note: This has been amended since it went to press.