Ken Blackwell is Senior Fellow for Family Empowerment at Family Research Council. This article appeared in The Columbus Dispatch on November 17, 2014.
In a 2-1 decision last Thursday, a panel of the 6th U.S. Circuit Court of Appeals held that constitutional provisions in four states defining marriage as the union of one man and one woman did not violate the U.S. Constitution. The decision in DeBoer vs. Snyder is controlling in Michigan, Ohio, Kentucky and Tennessee. Judge Jeffrey S. Sutton wrote the opinion and was joined in the majority by Judge Deborah L. Cook.
Judge Sutton’s opinion reversed federal district court opinions from these four states that had overturned their male-female marriage definitions. The 6th Circuit decision creates a “circuit split” with several other U.S. courts of appeals (the 9th, 7th, 4th and 10th) which have ruled that laws recognizing only male-female marriage are unconstitutional. The existence of a circuit split makes it more likely that the U.S. Supreme Court will now take up same-sex marriage, even though it ducked the controversy back in early October.
The DeBoer opinion is a tremendous achievement and should be read by anyone who wishes to see how critically important the same-sex marriage issue is to this nation and its way of life. Sutton has written in a clear, concise manner that avoids legalese and judicial mumbo-jumbo. Broadly speaking, he addresses two key topics: first, the reasonable nature of the male-female marriage definition and its rather clear constitutionality; and, second, the great danger that lies in having federal courts “constitutionalize” this issue, thereby removing decision-making about marriage, family and sexuality from the citizens of this nation.
Let’s back up for a second and spell out what is taking place at its most basic level. The bottom line is that America’s elites — political, cultural, educational and legal — are using the courts to impose a social-sexual revolution on American society. It is a revolution in which recognition of biological and psychological complementarity of the sexes and the male-female capacity to produce children is replaced with the acceptance of a new social construct of self-defining amorphous sexuality and open-ended definitions of morality and family. Anything will go — literally.
This is an extremely radical agenda when one considers that, as the Centers for Disease Control and Prevention’s National Center on Health Statistics indicated recently, only 1.6 percent of the population is gay or lesbian. That constitutes about 1 in 60 people.
In the United States, the nonexistence of same-sex marriage has been an unbroken truth from the common-law era, to the creation of state statutes and, in the majority of states, to the recent popular enactment of state constitutional amendments. Before the Massachusetts Supreme Judicial Court mandated same-sex marriage in 2003, no state permitted this conjugal arrangement. And, since the courts in Hawaii began to consider the option in 1993, three times as many states have reaffirmed their traditional male-female marital definition as have gone the other way (excluding those states that did so after a judicial mandate).
Just this year, even the European Court of Human Rights restated an earlier judgment that the European Charter does not require contracting states “to grant same-sex couples access to marriage.” That court left the definition of marriage with each member nation. The American courts are in way over their heads here on an uncharted course of social experimentation.
Sutton does well describing the complexity of the social questions involved, noting: “A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all of our ancestors, and shared still today by a significant number of states.” Understanding that a different perspective and set of beliefs about marriage has developed in recent years “does not show that the states, circa 2014, suddenly must look at this policy issue in just one way on pain of violating the Constitution.”
If five justices of the Supreme Court want to redefine marriage in America as a matter of constitutional law, then DeBoer may apply sufficient pressure to make them take up the case and resolve the existing circuit split. I hope and pray that the court does not act so arrogantly as to think it understands the social and political consequences of redefining marriage. Most assuredly, it does not even begin to understand all the ramifications of such an aggressive legislative act.
Sutton has set out a better approach that will allow states to define marriage consistent with the Supreme Court’s 2012 Windsor opinion. The Founders did not establish a judicial oligarchy to rule over Americans on great social and moral questions. Rather, in a republic the people are supposed to govern on matters of great import. The family is the fundamental institution in human society, and its complex features must be determined by the people — either directly or through their elected representatives.