Splits

Thursday, November 6, the 6^th Circuit Court ruled on several cases related to same-sex “marriage.” Lower courts had claimed that states’ attempts to continue to define marriage as between a man and a woman was unconstitutional. Some earlier circuit court rulings recently went that direction, claiming the 14^th Amendment requires the change—even though the SCOTUS ruling on DOMA last year insisted the defining power rested with the states.

But now the 6^th Circuit has stopped that court overreach and made a helpful explanation. Two things come out of this:

·        The court delineates a number of reasons that a state might choose to keep the millennia-old definition (there is a rational basis).

·        The court points out the limits of the judiciary, particularly declining to force federal law changes on states, where the Constitution hasn’t explicitly required such changes.

Now that there is a split, the Supreme Court has an undeniable reason to take up the issue. If I understand correctly, the cases for the 2014-2015 session are already on the docket. The growing list of same-sex “marriage” cases, then, cannot be taken up until the 2015-2016 session, which would probably be decided in June 2016.

In the meantime, there is a hodgepodge of states required to allow same-sex “marriages,” alongside states which are allowed to refrain from granting them or recognizing them from other states. When the Supreme Court refused to take up the cases this year, in the absence of a circuit court split, they knew such confusion would ensue. But they were willing to ignore that in favor of waiting until the most appropriate time. I hope that was the wiser decision in the long run.

This ruling says a number of helpful, hopeful things. It’s quite beautifully written. Here’s a sample from the opening:

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.

This is, unfortunately, couched within an assumption that societal change is coming. But it declines usurping power to bring it on: 

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution. 

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? 

The pertinent portion of the Fourteenth Amendment says,  

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 

So the plaintiffs—those requiring states to throw out their traditional definition of marriage—are claiming they’re being denied equal protection. It seems obvious, to me, that they have not been denied. No one has said homosexual individuals can’t marry—enter into a marriage contract as any other American would—a permanent contract with a member of the opposite sex, who is not married to someone else, and who is not a close relative.  

Same-sex couples are not individuals who are “banned” from marrying. What is actually happening is that they are requiring all of society to throw out the definition of marriage and make some new one that includes same-sex couples—and possibly also any other coupling that any individuals desire. 

The 6^th Circuit has refrained from voicing personal opinion on this redefinition debate. This restraint is too rare. And it is a great relief in the ongoing onslaught against the definition of marriage. 

Ryan Anderson, at The Heritage Institute, as always explains the issue with clarity. He pulls out the pertinent quotes, so I recommend his piece, "No ConstitutionalRight to Same-Sex Marriage, Circuit Court Rules.”

Language is important. That’s true in discussing issues, and in rulings within the written law. So, do we know what marriage is? 

For most of human history it has been a legal contract between a man and a woman, requiring permanence and fidelity—for the benefit of family, which is the basic unit of society, in which civilization is continued from generation to generation. 

Governments didn’t start marriage; God started marriage, in the Garden of Eden. A long time before any existing government. Where governments are concerned, as with other contracts, they’re concerned with the keeping of the terms. So it’s important to know the definition of the terms. The Supreme Court and various courts—now including the 6^th Circuit—allow states to define the term. Regardless of the temporary confusion, marriage is a legally understood term. 

Marriage simply is what it is: a permanent promise between a man and a woman to engage exclusively with each other in heterosexual sex, which can lead to offspring and therefore form a family. Fathers know who their offspring are, and feel obligated, therefore, to stay connected and provide. Love is nice but not required in the keeping of the contract. Other sexual acts are not necessarily condemned, but are simply not at issue in marriage. Only one type of sexual act is of interest.  

So, if there is to be a debate about change, it ought to be an open discussion. It’s not about whether society is prejudiced against same-sex couples; nature has set up that prejudice. Same-sex couples simply cannot participate in the act that is required for marriage. Indeed, couples who marry and then have a spouse who fails to engage in that act can have the contract nullified. It’s fraudulent to promise to marry and then fail to consummate the marriage in the particular act. It doesn’t matter if the couple “loves” each other, or enjoys sharing a domicile, or thinks it might be a good idea to adopt a child. Failure to keep the marriage contract is grounds for annulment or divorce.  

The existence of same-sex couples who want to be honored for their current relationship certainly isn’t grounds for changing the definitions. 

Parties involved in claiming discrimination ought to be required to prove one of these things: 

·        Prove that they can and will engage in the act required in marriage, to make the contract legal.

·        Or prove that their relationship is equivalently good for civilization as marriage has been. 

They cannot do the first. They have not done the second. They cannot produce children. In every case same-sex-parented “families” have children not produced by the couple. Not because one or the other is infertile, but because same-sex coupling cannot be fruitful. This is obvious to anyone who has even a very basic understanding of biological reproduction. 

Same-sex couples try to claim their parenting is equivalently good. Individual cases may be adequate, but they have not proven equivalence as likely. Most studies compare same-sex parenting to single parented families—which are statistically inferior to married parent families in every measure. Some recent studies are showing that, additionally, same-sex parents lead to a higher likelihood of gender confusion in children. 

Additionally, unlike the vast majority of traditional marriages, same-sex marriages fail, in extremely high percentages, to be exclusive or permanent. 

There is no advantage to society leading to honor for same-sex couples. The debate must be turned from whether it’s nice or not to “ban” same-sex “marriage” [something can’t be banned if it never existed], and turned instead to whether throwing out the long-standing definition is better for society because same-sex couples make some significant civilizing contribution. 

While last week’s ruling was hopeful, it’s only a limited victory. It merely refrained from usurping authority in the redefinition, but it practically admits defeat in society’s eventual change. It’s possible that the wording is designed to give the swing vote, Kennedy, persuasion to refrain from imposing the definition change. But, personally, I prefer truth, clarity, and allegiance to ultimate good, rather than trusting to strategy.