Family Research Council

Why Do Courts (and the Media) Ignore Federal Precedent on Marriage?

By Peter Sprigg Senior Fellow for Policy Studies

Advocates for changing the fundamental definition of marriage as the union of a man and a woman in order to include homosexual relationships have been encouraged by two recent decisions by federal district court judges.

On December 20, Judge Robert J. Shelby ruled that Utah's state constitutional amendment defining marriage as the union of one man and one woman violates the U.S. Constitution. On January 14, Judge Terence C. Kern said the same thing about the Oklahoma marriage amendment.

However, one odd aspect of both rulings is their failure to cite one of the most relevant precedents regarding the constitutionality of state definitions of marriage as a male-female union.

Only two federal appellate courts have ever ruled on the constitutionality of a state law defining marriage as the union of a man and a woman. One was the U.S. Court of Appeals for the Ninth Circuit, which in 2012 ruled (on narrow grounds specific to California) that California's marriage amendment "Proposition 8" was unconstitutional.

However, in one of two major decisions on marriage in 2013, the U.S. Supreme Court vacated the Ninth Circuit ruling, on grounds that the proponents of Proposition 8 had lacked proper standing to appeal a district court decision. (Liberal state officials had refused to defend their own constitution at all.)

With the Ninth Circuit's ruling having been effectively wiped off the books, the only remaining federal appeals court precedent involves a challenge to Nebraska's marriage amendment. In that case, too, a district court judge, Joseph F. Bataillon, ruled in 2005 that the amendment was unconstitutional.

However, a year later, a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit overturned Judge Bataillon's decision and upheld the Nebraska amendment. This 2006 decision thus remains the highest federal court ruling with a written opinion on state definitions of marriage as one man and one woman.

Yet oddly, neither Judge Shelby in Utah nor Judge Kern in Oklahoma saw fit to even mention this decision. Neither judge's district is in the Eighth Circuit (both are in the Tenth), so the Bruning case is not binding upon them -- but given the relative dearth of such cases that have reached the federal appellate level, it seems odd that it not be mentioned at all.

Below are some excerpts from the opinion, written by Chief Judge James B. Loken:

Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006)

. . .

The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in "steering procreation into marriage." By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws "encourage procreation to take place within the socially recognized unit that is best situated for raising children." The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a "responsible procreation" theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. See Hernandez v. Robles [New York, 2006]; Morrison v. Sadler, [Indiana, 2005]. Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State's justification "lacks a rational relationship to legitimate state interests." Romer, 517 U.S. at 632.3

The district court rejected the State's justification as being "at once too broad and too narrow." But under rational-basis review, "Even if the classification . . . is to some extent both underinclusive and overinclusive, and hence the line drawn . . . imperfect, it is nevertheless the rule that . . . perfection is by no means required." Vance v. Bradley (1979). Legislatures are permitted to use generalizations so long as "the question is at least debatable." The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature -- or the people through the initiative process -- may rationally choose not to expand in wholesale fashion the groups entitled to those benefits. "We accept such imperfection because it is in turn rationally related to the secondary objective of legislative convenience." [Vance].

. . .

Appellees argue that § 29 [the marriage amendment] does not rationally advance this purported state interest because "prohibiting protection for gay people's relationships" does not steer procreation into marriage. This demonstrates, Appellees argue, that § 29's only purpose is to disadvantage gay people. But the argument disregards the expressed intent of traditional marriage laws -- to encourage heterosexual couples to bear and raise children in committed marriage relationships.

. . .

In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson (1972), when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed "for want of a substantial federal question." (Emphasis added.)

. . .

We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.