Uncommon Common Sense on Marriage

Peter Sprigg is Senior Fellow for Family Policy Studies at Family Research Council. This article appeared in Townhall.com on November 20, 2014.

For defenders of natural marriage, the long wait for a decision from the U.S. Court of Appeals for the Sixth Circuit was worth it. Three months to the day after hearing oral arguments on cases out of four states (Michigan, Ohio, Kentucky, and Tennessee), a three-judge panel issued a 2-1 ruling on November 6 upholding the states’ rights to define marriage as the union of one man and one woman.

The ruling also upheld their right to refuse recognition to marriages from other states that violate that definition and overturned lower court decisions in six separate lawsuits.

The ruling greatly increases the likelihood that the Supreme Court will take a case that allows it to rule on whether the Constitution permits states to maintain the natural and historic definition of marriage. Most observers were shocked a month earlier when the Supreme Court declined to take up any of the cases in which other Appeals Courts had overturned state marriage laws. The Sixth Circuit ruling is in conflict with all the other federal Appeals Court rulings handed down in the last year (since the Supreme Court struck down a portion of the federal Defense of Marriage Act in June 2013 in United States v. Windsor), so only the Supreme Court will be able to resolve this conflict.

Judge Jeffrey S. Sutton’s opinion for himself and Judge Deborah L. Cook was a model of judicial restraint. At the beginning, the end, and several places in between, he emphasized that the core constitutional question for judges to decide is not “Whether gay marriage is a good idea,” but rather, “Who decides?” His conclusion is that courts should not force a change in marriage policy, but “allow change through the customary political processes.”

Sutton began with an under-appreciated point—the Supreme Court already has a binding precedent upholding the opposite-sex definition of marriage. In a pioneering case in the early 1970’s, Baker v. Nelson, a same-sex couple in Minnesota filed a claim that the U.S. Constitution requires they be permitted to “marry,” but the Minnesota Supreme Court rejected that argument. On appeal, the Supreme dismissed the case “for want of a substantial federal question.” At the time, such a dismissal was not just a refusal to hear the case, but established a binding precedent on the issues presented in it. No written opinion explained the Court’s reasoning, but that does not mean that lower courts are free to ignore it.

Sutton also emphasized the principle that the words of a written Constitution must be given the meaning they had when they were written. Plaintiffs assert that the due process and equal protection clauses of the 14th Amendment (adopted in 1868) require same-sex “marriage,” but Sutton wryly notes, “Nobody . . . argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.”

Like the many judges who (at least before last year’s Windsor decision) upheld one-man-one-woman marriage laws, Sutton said the principal “rational basis” for such a law is related to procreation. “[G]overnments got into the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse,” Sutton observed. Debunking the idea that male-female marriage rests only on “tradition” or “religion, Sutton noted, “It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative” to regulate marriage.

One of the more intriguing aspects of Sutton’s majority opinion is that he emphasized that even more liberal theories of jurisprudence do not provide support for the judicial redefinition of marriage. For example, some argue that the Constitution is a “living” document whose meaning must “evolve” with changing values. Sutton points out, however, “A principled jurisprudence of constitutional evolution turns on evolution in society’s values, not evolution in judges’ values.” Liberals have also sometimes looked to the precedent of foreign courts (to the chagrin of conservatives), but Sutton pointed out that even the European Court of Human Rights has twice rejected the claim that “marrying” a person of the same sex is a “human right.”

Conservatives do not accept the premise that the Constitution “evolves” in any way. It is a written text with a fixed meaning. This was the Founders’ intent, which is why they included within the Constitution the Tenth Amendment (specifically consigning to the states all the powers it does not explicitly delegate to the federal government) and the amendment process itself.

However, Sutton’s larger point, that when judges use “changing values” as the basis for their rulings, they should reflect the values of those they serve, not their own personal preferences.

The ruling from the Sixth Circuit exhibited a common sense that has been all too uncommon in rulings by other judges eager to swim with the tide of elite liberal opinion. It showed respect for the text of the Constitution, precedents of the Supreme Court, the sovereignty of states, and the democratic process.

The Supreme Court should affirm this reasoning at its earliest opportunity.