To the jubilation of groups that support traditional marriage, a federal appellate court Thursday upheld laws against gay marriage laws in four states, setting the stage for a near-certain constitutional clash over the issue at the Supreme Court.
The 6th Circuit Court of Appeals reversed rulings striking down gay marriage bans in Michigan, Tennessee, Kentucky and Ohio, saying they would prefer to allow any change to come through “the customary political processes.”
The panel’s 2-1 decision held that state governments had a legitimate interest in regulating marriage because of the potential for childbearing in heterosexual unions, and that a handful of judges should not overrule millions of voters.
The circuit ruling stands in contrast to recent rulings in the 4th, 7th, 9th and 10th Circuits, which all struck down similar state laws as unconstitutional.
Such a circuit split makes it likely the Supreme Court will eventually vote to take a gay marriage case for review, a likelihood confirmed last month by liberal Supreme Court Justice Ruth Bader Ginsburg.
Asked why the high court had not until then taken up a gay marriage challenge, she told a New York City audience, “When courts of appeals disagree about what the law of the United States is, then we are obligated to grant review. If there had been a court of appeals on the other side, we probably would have taken that case.”
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The ACLU, in a statement, called the decision “deeply disappointing” and said it was planning a request for a Supreme Court review “right away” in order to make gay marriage legal throughout the country.
Additional rulings on gay marriage laws are expected in coming months from the 5th, 8th and 11th Circuits, as well as from the 1st Circuit, which is likely to hear an appeal of a recent ruling upholding Puerto Rico’s right to maintain its one-man, one-woman marriage law.
Opponents of same-sex marriage, who had endured a string of legal reverses in recent months, immediately hailed Thursday’s ruling.
“We have been awaiting this decision for some time, and welcome it not only as a tremendous victory, but as a common-sense recognition that it is not for the federal courts to substitute their judgment about whether same-sex ’marriage’ is a good idea or not, but to leave it to the people to make the decision about this fundamental institution,” said Brian Brown, president of the National Organization for Marriage.
But Evan Wolfson, president of Freedom to Marry, predicted that the ruling “won’t stand the test of time or appeal.”
The 6th Circuit is “completely out of step” with the Supreme Court, dozens of other state and federal courts and the majority of the American people, Mr. Wolfson said.
Dose of judicial ’humility’
In their majority opinion, 6th Circuit Court Judge Jeffrey S. Sutton, joined by Judge Deborah L. Cook, said they did not want to remove the issue from the hands of the voters.
“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 32 million citizens who live within the four states of the Sixth Circuit.”
Moreover, they said, “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, or not all, of our ancestors, and shared still today by a significant number of states.”
The court also struck a distinction about the meaning of the institution of marriage, saying it was primarily related to regulating childbearing, not “love.”
“People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish,” the judges wrote.
“Imagine a society without marriage,” they added. “It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children.”
Judge Martha Craig Daughtrey dissented, saying she didn’t agree with “the same tired argument” that marriage is about the “procreative urges” of men and women, citing the “masterful” and “excellent” rulings of lower courts and other circuits that legalized gay marriage.
“Indeed, it would seem unnecessary for this court to do more than cite those cases in affirming the district courts’ decisions in the six cases before us,” wrote Judge Daughtrey. Instead, “one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split” and prompt an end to the controversy from the Supreme Court.
Judge Daughtrey was appointed to the bench by President Clinton, while both Judges Sutton and Cook were appointed by President George W. Bush.
University of Richmond law professor Carl Tobias said the circuit split could “make it likely that the Supreme Court will grant review.” The four states of the 6th Circuit “have different rules for same-sex marriages” than the states in other circuits, he noted.
For the time being, gay marriage is legal in at least 32 states, with court battles underway in Kansas, South Carolina, Montana and Missouri.
With all these gay marriage states, the 6th Circuit’s ruling “perpetuates an unsustainable patchwork” on marriage, said John Lewis, legal and policy director of Marriage Equality USA.
“It’s time for this differential treatment to end. It’s time for full marriage equality for all Americans,” added Brian Silva, executive director of Marriage Equality USA.
However, traditional values advocates and lawyers were excited to see man-woman marriage defended, especially on the heels of Tuesday’s election of dozens of conservative Republicans to Congress and to governorships.
“Marriage is not merely a creation of any one civilization or its statutes, but is an institution older than the Constitution and, indeed, older than any laws of any nation. Marriage is a natural bond that society or religion can only ’solemnize,’” said Mat Staver, founder and chairman of Liberty Counsel.
The people of every state should remain free to affirm marriage as the union of a man and a woman in their laws,” said Byron Babione, of Alliance Defending Freedom.
“As the 6th Circuit rightly concluded, the Constitution does not demand that one irreversible view of marriage be judicially imposed on everyone. The 6th Circuit’s decision is consistent with the U.S. Supreme Court’s acknowledgment that marriage law is the business of the states,” said Mr. Babione.
Michigan Attorney General Bill Schuette called the circuit court’s ruling a victory for the state’s constitution.
“The U.S. Supreme Court will have the final word on this issue. The sooner they rule, the better, for Michigan and the country,” Mr. Schuette said.
• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.
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