Friday, November 07, 2014

'Gay Marriage' Loses in Fed. Court, on to Supremes

Yesterday, the 6th Circuit Court of Appeals in Cincinnati ruled 2 to 1 that Supreme Court precedent and the U.S. Constitution provide that states may define marriage as between one and one woman.  This ruling likely means that the U.S. Supreme Court will decide this marriage issue by July 2015.

For background, read the increasing number of court rulings AGAINST the redefinition of marriage.

Also read 'Gay Marriage' Not Favored in Polls, Only in Court

-- From "Appeals court upholds bans on same-sex marriage for first time" by Robert Barnes, Washington Post 11/6/14

The decision overturned lower-court rulings in Michigan, Ohio, Tennessee and Kentucky and makes the 6th Circuit the first appeals court to uphold state bans since the Supreme Court struck down part of the federal Defense of Marriage Act in 2013.

[U.S. Circuit Judge Jeffrey S.] Sutton, writing for himself and Judge Deborah L. Cook, rejected the [erroneous] analysis of the Supreme Court’s decision in U.S. v. Windsor that has led other appeals courts to strike the bans on same-sex marriage. He repeatedly returned to the principle of democratic action, saying advocates of same-sex marriage would be better off by persuading their fellow citizens than by asking federal judges to force the issue.

Sutton, a favorite of the conservative legal establishment and frequently mentioned as a potential Supreme Court nominee under a Republican president, was nominated by President George W. Bush. Cook was also nominated by Bush.

While it is possible the full 6th Circuit could take up the issue — a delay that would mean the Supreme Court would not receive the cases in time to hear them this term — lawyers on both sides of the case pledged to move quickly.

To read the entire article above, CLICK HERE.

From "Michigan Gov. Snyder says defending gay marriage ban a duty, 'not a matter of personal preference'" by Jonathan Oosting, (Booth Newspapers, Grand Rapids, MI) 11/6/14

Michigan’s gay marriage ban remains in place after a federal court ruling on Thursday, and Republican Gov. Rick Snyder and Attorney General Bill Schuette both made clear they will continue to defend it.

“When I became governor, I took an oath to support and defend our state constitution, without exceptions,” Snyder said in a statement, referencing the 2004 voter-approved amendment that defined marriage as between one woman and one man.

“My obligation to carry out that oath is not a matter of personal preference. As I have said throughout this process, I will respect the court’s decision as it examines the legality of same-sex marriage.”

Snyder has consistently declined to take a stance on the underlying issue — whether the same-sex marriage ban is good public policy — which has led to criticism from gay rights supporters.

To read the entire article above, CLICK HERE.

From "Sixth Circuit Rules in Favor of State Marriage Laws" by Ed Whelan, National Review Online 11/6/14

Here’s a summary [of the ruling]:

1. The Supreme Court’s summary ruling in Baker v. Nelson (1972) binds federal courts of appeals to hold that state laws that define marriage as the union of a man and a woman are constitutional. The Court’s ruling last year in Windsor v. United States doesn’t overrule Baker, nor does it clash with it. Neither of the two preconditions for ignoring Supreme Court precedent applies. Nor do the Court’s recent denials of certiorari in other marriage cases have any bearing.

2. Under the original meaning of the Fourteenth Amendment, state marriage laws are clearly constitutional.

3. State marriage laws easily survive rational-basis review. It is rational to define marriage as a male-female union because (a) governmental recognition of marriage operates to regulate the intended and unintended effects of male-female intercourse, and (b) it’s reasonable for the people of a state to assess how the benefits and burdens of redefining marriage are playing out in other states before they decide whether to take that step. “Any other approach would create line-drawing problems of its own.”

To read the entire summary above, CLICK HERE.

From "Court breaks ranks, upholds marriage bans" by Tom Strode, Washington bureau chief for Baptist Press 11/7/14

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.

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.”

To read the entire article above, CLICK HERE.

From United States Court of Appeals for the Sixth Circuit - File Name: 14a0275p.06 by Judges Jeffrey S. Sutton and Deborah L. Cook 11/6/14

This is a case about change — and how best to handle it under the United States Constitution. From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen. 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.

But things change, sometimes quickly. . . .

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. . . .

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?

. . . 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.

To take another rational explanation for the decision of many States not to expand the definition of marriage, a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries. That is not preserving tradition for its own sake. No one here claims that the States' original definition of marriage was unconstitutional when enacted. The plaintiffs' claim is that the States have acted irrationally in standing by the traditional definition in the face of changing social mores. Yet one of the key insights of federalism is that it permits laboratories of experimentation  —accent on the plural — allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time. As a matter of state law, the possibility of gay marriage became real in 2003 with the Massachusetts Supreme Judicial Courtfs decision in Goodridge. Eleven years later, the clock has not run on assessing the benefits and burdens of expanding the definition of marriage. Eleven years indeed is not even the right timeline. The fair question is whether in 2004, one year after Goodridge, Michigan voters could stand by the traditional definition of marriage. 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.

. . . Any other approach would create line-drawing problems of its own. Consider how plaintiffs' love-and-commitment definition of marriage would fare under their own rational basis test. Their definition does too much because it fails to account for the reality that no State in the country requires couples, whether gay or straight, to be in love. Their definition does too little because it fails to account for plural marriages, where there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. 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.

. . . In considering the claimants' arguments that they have a fundamental right to marry each other, we must keep in mind that something can be fundamentally important without being a fundamental right under the Constitution. Otherwise, state regulations of many deeply important subjects — from education to healthcare to living conditions to decisions about when to die — would be subject to unforgiving review. They are not. . . . Instead, the question is whether our nation has treated the right as fundamental and therefore worthy of protection under substantive due process. More precisely, the test is whether the right is "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed." . . . That requirement often is met by placing the right in the Constitution, most obviously in (most of) the guarantees in the Bill of Rights. . . . But the 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.

That leaves the other option — that, even though a proposed right to same-sex marriage does not appear in the Constitution, it turns on bedrock assumptions about liberty. This too does not work. . . .

The theory of the living constitution rests on the premise that every generation has the right to govern itself. If that premise prevents judges from insisting on principles that society has moved past, so too should it prevent judges from anticipating principles that society has yet to embrace. It follows that States must enjoy some latitude in matters of timing, for reasonable people can disagree about just when public norms have evolved enough to require a democratic response. Today's case captures the point. Not long ago American society took for granted the rough correlation between marriage and creation of new life, a vision under which limiting marriage to opposite-sex couples seemed natural. Not long from now, if current trends continue, American society may define marriage in terms of affirming mutual love, a vision under which the failure to add loving gay couples seems unfair. Today's society has begun to move past the first picture of marriage, but it has not yet developed a consensus on the second.

If, before a new consensus has emerged on a social issue, federal judges may decide when the time is ripe to recognize a new constitutional right, surely the people should receive some deference in deciding when the time is ripe to move from one picture of marriage to another. So far, not a single United States Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the Fourteenth Amendment. No one would accuse the Supreme Court of acting irrationally in failing to recognize a right to same-sex marriage in 2013. Likewise, we should hesitate to accuse the States of acting irrationally in failing to recognize the right in 2004 or 2006 or for that matter today. Federal judges engaged in the inherent pacing that comes with living constitutionalism should appreciate the inherent pacing that comes with democratic majorities deciding within reasonable bounds when and whether to embrace an evolving, as opposed to settled, societal norm. The one form of pacing is akin to the other, making it anomalous for the Court to hold that the States act unconstitutionally when making reasonable pacing decisions of their own.

. . . For all of the power that comes with the authority to interpret the United States Constitution, the federal courts have no long-lasting capacity to change what people think and believe about new social questions. If the plaintiffs are convinced that litigation is the best way to resolve today's debate and to change heads and hearts in the process, who are we to say? Perhaps that is not the only point, however. Yes, we cannot deny thinking the plaintiffs deserve better — earned victories through initiatives and legislation and the greater acceptance that comes with them. But maybe the American people too deserve better — not just in the sense of having a say through representatives in the legislature rather than through representatives in the courts, but also in the sense of having to come face to face with the issue. . . .

Last, but not least, federal courts never expand constitutional guarantees in a vacuum. What one group wants on one issue from the courts today, another group will want on another issue tomorrow. The more the Court innovates under the Constitution, the more plausible it is for the Court to do still more — and the more plausible it is for other advocates on behalf of other issues to ask the Court to innovate still more. And while the expansion of liberal and conservative constitutional rights will solve, or at least sidestep, the amendment-difficulty problem that confronts many individuals and interest groups, it will exacerbate the judge-confirmation problem. Faith in democracy with respect to issues that the Constitution has not committed to the courts reinforces a different, more sustainable norm.

. . . This case ultimately presents two ways to think about change. One is whether the Supreme Court will constitutionalize a new definition of marriage to meet new policy views about the issue. The other is whether the Court will begin to undertake a different form of change — change in the way we as a country optimize the handling of efforts to address requests for new civil liberties.

If the Court takes the first approach, it may resolve the issue for good and give the plaintiffs and many others relief. But we will never know what might have been. If the Court takes the second approach, is it not possible that the traditional arbiters of change — the people — will meet today's challenge admirably and settle the issue in a productive way? 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.

For these reasons, we reverse.

To read the entire court ruling above, CLICK HERE.

Also read New York Incestuous Marriage OK: Unanimous Appeals Court Ruling