07 Jan Maybe. But, maybe not
January 7, 2015
From the Desk of Laura Bunker:
Welcome to 2015!
United Families International also extends a special welcome to our new UFI Chapter in the Republic of Korea (South Korea). We are very glad to have them join our team, and we look forward to working together to strengthen and protect families throughout the world.
Today’s excellent alert by Dawn Frandsen helps get us up to speed on the history and current status of marriage law in the United States. Dawn discusses the possible impact of the 6th Circuit Court decision, and includes several quotable quotes from the decision itself.
Buckle your seat-belts everyone, it looks like 2015 may be quite a ride!
United Families International, President
Maybe. But, maybe not.
By Dawn Frandsen
Maybe we are stuck with the decision of the courts on recognizing same-sex marriage. Maybe despite the voice of the people, maybe despite the numerous laws on both the state and federal level and the Constitutional directives in many states defining what sort of marriages those states have deemed compelling to the interests their state, maybe despite the social science substantiations that the ideal situation for children to be raised is in a stable marriage consisting of a mother and a father, maybe in spite of all these things, same-sex marriages will be recognized as a legal relationships across the entire United States.
But, maybe not.
A little history:
In 1993, a woman named Nina Baeh sued the state of Hawaii, claiming that her inability to obtain a marriage license with her same-sex partner amounted to discrimination. The Hawaii Supreme Court did not rule in favor of Baehr, but the ruling handed down from the bench clearly indicated that they saw merit in her accusation of discrimination. The case was sent back to the lower court and the process of using the courts to change the definition of marriage had begun.
While the court did not affirm the two women’s right to marry, their acknowledgment that the recognition of their marriage could be a legal possibility, coupled with Article IV’s Full Faith and Credit language, caused other states to take notice of the fact that they might need to do what had heretofore been seemingly absurd—legally define marriage as the union of one man and one woman.
In 1995, as a preemptive caution, the state of Utah passed the first Defense of Marriage Act (DOMA). The law protected the state’s right to not recognize incestuous, polygamous, same-sex or child marriages.
One year later, a federal DOMA was passed upholding individual state’s right to choose to ban same-sex marriages and prohibiting the federal government from recognizing same-sex marriages.
Through those years and during the next few, homosexual activists continued to petition courts across the nation to recognize their marriages. In 1998, Alaska became the first state to ban same-sex marriages not simply by code, but by Constitutional mandate.
Ten years after the initial lawsuit in Hawaii, the Supreme Court in Massachusetts decided that the gays and lesbians in their state did indeed have the right to marry. In 2004, weddings began.
That same year, in the U.S. House of Representatives, a bill was introduced that would begin the process of amending the United States Constitution to recognize only marriages between a man and a woman. The Federal Marriage Amendment was designed specifically to prevent extension of marriage rights by judicial actions. The bill failed.
Also in 2004, fifteen more states added amendments to their constitutions, reiterating their acknowledgment that marriage should consist of one man and one woman.
Over the next four years, 12 more states, respecting the voice of their citizens, enacted amendments. The activists, working through the courts, did not slow their efforts and in 2008, the Supreme Court in Connecticut followed Massachusetts’ ruling that homosexuals could indeed marry. California’s Supreme Court handed down a similar ruling that same year. The state did not yet have a state constitutional amendment protecting marriage, and thus began the “Prop 8” war.
Beginning in 2009, state legislatures, not just the courts began to legalize same-sex marriages. Vermont was first, New Hampshire second and the District of Columbia third. Over the next three years, four more states would, either through legislation or popular vote, allow same-sex marriages.
2013 found three more states deciding through legislation to allow the new variety of marriage and two more state courts ruled that homosexual marriages must be recognized. That year in the Supreme Court two rulings were handed down: one negating the Proposition 8 amendment in California so gay and lesbian marriages became legal in that state again; and the second struck down part of the federal DOMA requiring the federal government to recognize all gay and lesbian marriages in states where they were recognized.
In 2014, a rapid-fire series of federal circuit court decisions rendered the protective marriage amendments in nineteen states illegal and unenforceable. The petition to the Supreme Court from several states was declined, leaving the lower courts’ rulings in place and only fifteen states where marriage between one man and one woman was still defined and protected as prescribed voters.
In all, decisions from the bench disregarded the people’s voice in thirty-one states (those state constitutional marriage amendments having passage rates ranging from 86 to 52 percent), voiding their right to define marriage.
Seven of those states (including Utah) petitioned the Supreme Court to make a final judgment. In early October of 2014, the Court said further deliberation was not necessary because all the lower courts had reached the same conclusion.
Now the “maybe not” part:
In the first week of November (2014), the Sixth Circuit handed down a ruling that might be a game changer. The decision was given in response to petitions from the states of Michigan, Ohio, Kentucky and Tennessee, all of whom had their DOMA laws struck down in their state courts.
Judge Jeffery S. Sutton and Judge Deborah L. Cook delivered the opinion. They recognized that they [the court] did not have the authority to examine the question of whether gays and lesbians have the “right” to be married, but that their task as judges was to determine “Does the Fourteenth Amendment of the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?” And that question was the foundation upon which their opinion was built. They pointed out that all the appeals courts that have found in favor of the constitutional right to same-sex marriage, agreed on the result, but “not one of the plaintiffs’ theories, make the case…for removing the issue from the place it has been since the founding: in the hands of state voters.” [Emphasis added]
Here are a few highlights from the decision:
“Nobody [has argued] that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.” Recent examples were given as to where the Supreme Court has “confirmed the significance of long-accepted” constitutional interpretation and then it was pointed out that “this approach permits today’s marriage laws to stand until the democratic process says they should stand no more. From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning that the Fourteenth Amendment permits, though it does not require, States to define marriage in that way.” [p. 18]
That when beginning from “the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. 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.”
They further pointed out that “A reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them.” And that as a society, we “may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter religion’s laws, but nature’s laws (that men and women complement each other biologically) that created the policy imperative.” [pp. 19-20] They also found that, “rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges, even a better way supported by evidence.” [p. 20]
Is support for man/woman marriage irrational?
Plaintiffs have claimed that states that have taken measures to protect the longstanding definition of marriage have done so irrationally.
The Sixth Circuit decision answered that claim of irrationality this way:
“By creating a status (marriage) and 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 no 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 opposites 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.”
The judges queried, rightly so, “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?” [p. 21]
They go on to point out that, “If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutional irrational to stand by the monogamous definition of marriage. …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.” [p. 23]
To show how American policy has woven “monogamy into marriage’s fabric,” they point out “the federal government ‘encouraged or forced’ Native Americans to adopt the policy, and in 1878 the Supreme Court upheld a federal antibigamy law.” Since then the Court has not addressed this topic but “if it did, how would the constitutional, as opposed to policy, arguments in favor of same-sex marriage not apply to plural marriages?” [p 30]
In addressing the claim of animus, so frequently used by many plaintiffs across the country: “if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning. Who in what retrospect can blame the voters for having this fear?” They continue, “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds,” and “How in this setting can we indict the 2.7 million Michigan voters who supported the amendment in 2004, less than one year after the first state supreme court recognized a constitutional right to gay marriage, for favoring the amendment for prejudicial reasons and for prejudicial reasons alone? Any such conclusion cannot be squared with the benefit of the doubt customarily given voters and legislatures under rational basis reviews.” [pp. 25-26 emphasis original]
“It is no less unfair to paint the proponents of the measures as a monolithic group of hate-mongers than it is to paint the opponents as a monolithic group trying to undo American families.”[p. 27]
“Marriage has long been a social institution defined by relationships between men and woman. 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.” [p. 7] “Do the benefits of standing by the traditional definition of marriage make up for [the] costs? The question demands an answer—but from elected legislators, not life-tenured judges.” [p. 24]
“The only thing anyone knows for sure about the long-term impact of redefining marriage is that they do not know.” [p. 21 emphasis original]
So now we have what is called a split decision in the circuit courts.
Since the lower court rulings are no longer in consensus, the Supreme Court may be more likely to hear the case. Will they take up the issue? Many Court watchers say they must. When they do, will they rule that when states recognize the compelling interest to incentivize the union of a man and a woman they are acting irrationally? Or that everyday people are “hate-mongers” if they agree that tradition has proven that the best and safest place for a child to be raised is in a home with a mom and a dad? Or that a definition that was created a mere decade ago by activist court manipulation can trump a definition that has existed since the beginning of recorded time?
But, maybe not.
Here is the link to the Sixth Circuit Opinion: DeBoer V. Snyder