Lesbians march in Boston in 2008, having converted laws and state government to their perspective. (Photo massresistance.org)
By David Tulis
The authority of states and their peoples to define marriage is being cheerfully upheld by an appellate opinion in Cincinnati that make clear marriage laws such as Tennessee’s are rational, imposed not with bigotry but with reason, and enacted with a democratic spirit that esteems the commoner and makes much states’ rights and the even richer concept — local economy.
The judges reject a string of harsh and bitter arguments made by gay advocates and make the confident argument that the people in the respective states should decide for themselves by vote whether their governments should redefine marriage to include man-man and woman-woman couplings.
“Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. 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 thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee.”
The court says its authority is narrower, namely: does the 14th Amendment and its equal protection provision prohibit a state from defining a marriage as a relationship between one man and one woman.
Before summarizing the cases and naming the plaintiffs, the opinion framed the question about marriage law this way: “Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?” In Tennessee’s Tanco appeal, the state is refusing demands of three couples married in other states.
Two cases are important in DeBoer. The first is the Windsor decision of 2014 that invalidated parts of the 1996 Defense of Marriage Act. The supreme court overturned DOMA because it was an “unprecedented intrusion into the states’ authority over domestic relations.” In other words, DOMA had to go because it violated states’ rights and states’ provenance over marriage. DeBoer relies on a one-sentence ruling of a Minnesota marriage law case 1972. The U.S. court refused the gays’ appeal because it did not raise “a substantial federal question.” The ruling left standing in Baker is that the 14th Amendment’s due process and equal protection clauses do not give two sexually connected men a right to marry. “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. . . . This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause . . . is not a charter for restructuring it by judicial legislation.” As for the equal protection claim, the Minnesota court reasoned: “[T]he state’s classification of persons authorized to marry” does not create an “irrational or invidious discrimination. . . . [T]hat the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate . . . [creates only a] theoretically imperfect [classification] . . . [and] ‘abstract symmetry’ is not demanded by the Fourteenth Amendment.”
In sum: “Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it.”
My great worry averted
The judges acknowledge that LGBTQ theory has made strong inroads culturally and legally. Since 2003, 19 states and the district of Columbia have redefined marriage to include gay couples — but only some by the democratic process (in some states, attorneys general and governors “opted not to appeal adverse court decision”). Four courts of appeal recognize a gay right to marry a gay person/ Given this sense that lugbutt theory is inevitable, the judges Jeff Sutton and Deborah L. Cook insist on democratic process and effectively chide governors such as Scott Walker of Wisconsin who caved in to the inevitable in early October. On Oct. 6 the supreme court denied petitions for writ of certiorari in 1,575 cases, included seven that recognized a constitutional right to same-sex marriage. This nonresponse was considered to favor gay marriage, so Wisconsin’s Gov. Walker threw up his hands and threw the state and its people into homosexual hegemony.
My fear for Tanco v. Haslam had been that Gov. Haslam might cop out as did Mr. Walker. Patiently, the court patiently explains that a refusal to take an appeal “imports no expression of opinion *** as the bar has been told many times” and should not end debate. “A decision not to decide is a decision not to decide.”
American covenant — original meaning matters
The American system is federal, which implies a covenantal relationship among the people and voters, their states and the states’ agent, the federal government. The original meaning of words within constitutions are important, as DeBoer helpfully explains.
If we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm of constitutional interpretation — that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly — to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur — unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so.
Did the people in 1868 think it was pro-gay? “Nobody in this case *** argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.” The approach of originalism leaves it to the people to determine the definition of marriage. “Applied here, this approach permits today’s marriage laws to stand until the democratic processes say 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.”
Marriage is rational, serves public interest
Other federal circuits siding with LGBTQ theory hold that state definitions are irrational and fail under a rational basis review. But the DeBoer opinion takes a humbler approach to the practice of Tennessee and the states, and their peoples. Judges are to operate with judicial restraint and to trust in the people that “even improvident decisions will eventually be rectified by the democratic process.” Judges should have a light touch, and if there is ANY plausible reason for a law, the law must stand, no matter how unfair, unjust or unwise the judge may consider it.
“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 the States. Hesitant, yes; but still a rational basis, some rational basis, must exist for the definition.”
The opinion details the necessity for state laws defining rights and duty in marriage.
May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? *** 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. 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. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues.
Nineteen states sovereignly accept gay marriage “through their own sovereign powers,” extending to gay couples the consideration that in other states is exclusively applied to male-female unions. The rest are not to be second-guessed. The idea of a rational basis review “does not empower federal courts to ‘subject’ legislative line-drawing to ‘courtroom’ factfinding designed to show that legislatures have done too much or too little.”
By creating a status (marriage) and by 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 not 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 opposite 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 U.S. constitutional system envisions states as independent and self-governing, “laboratories of experimentation” in which one state goes one way, another a second, and a third state watches to see what happens.
The judges find irrationality not on the side of marriage, but on that of same-sex proponents. “Consider how plaintiffs’ love-and-commitment definition of marriage would fare under their own rational basis test. Their definition does too much because it fails to account for the reality that no State in the country requires couples, whether gay or straight, to be in love. Their definition does too little because it fails to account for plural marriages, where 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. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point.”
The court asks if the definition of marriage impose costs on gay couples. “The question demands an answer — but from elected legislators, not life-tenured judges. Our task under the Supreme Court’s precedents is to decide whether the law has some conceivable basis, not to gauge how that rationale stacks up against the arguments on the other side. Respect for democratic control over this traditional area of state expertise ensures that ‘a statewide deliberative process that enable[s] its citizens to discuss and weigh arguments for and against same-sex marriage’ can have free and reasonable rein. Windsor, 133 S. Ct. at 2689.”
Local economy, the authority of states and their people to govern themselves, and the free market rely on thinking of such texts as this one. Biblically the argument for marriage are more comprehensive than that expressed in this opinion because in these God is the lawgiver and the judge, and His law has to be accounted for. DeBoer makes the point that people in their states go in various directions. Those who elect to favor gay theory do so, to the chagrin of marriage backers. Those who elect to defend marriage do so, to the disapproval of LGBTQ supporters. Self-determination is a biblical principle; those inclined to evil choose it.
