Just days after the 6th U.S. Circuit Court of Appeals affirmed the right of states to define marriage as one man and one woman, the 5th U.S. Circuit Court is being urged to affirm the decision, because if it doesn’t, states might not even be able to regulate the “species” of marriage partners.
“If ‘marriage’ means fulfilling one’s personal choices regarding intimacy, as the appellants insist, it is difficult to see how states could regulate marriage on any basis,” said a friend-of-the-court brief filed in a Louisiana case. “If personal autonomy is the essence of marriage, then not only gender, but also number, familial relationship, and even species are insupportable limits on that principal and they all will fall.
“This is not just a slippery slope on which the appellants wish to set us, it is a bottomless pit into which they desire to throw us. It is clearly within a state’s right to define marriage between and man and a woman when that licensing restriction passes rational basis review.”
The warning isn’t new.
It was in 2008 when the nation was in the midst of a series of more than 30 state elections in which voters chose to affirm traditional marriage that the California Supreme Court, on its own initiative, created “same-sex marriage” in the state.
In a dissent from that opinion, State Supreme Court justice Marvin Baxter said: “The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy. … Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous.
“Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.”
“Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?”
The case developed when voters in Louisiana, by a 78 percent to 22 percent margin, defined marriage as the union of one man and one woman. Homosexual activists sued, but the law was affirmed at the district court level by Judge Martin C. Feldman, who said the state was under no constitutional obligation to recognize same-sex marriage.
The brief explains: “If ‘marriage’ means whatever a political activist, a cherry-picked plaintiff, or an appointed judge wants it to mean, it means nothing. If it has no fixed meaning, it is merely a vessel for a judge’s will. It is used as a subterfuge for judicial legislation. And as Montesquieu observed: ‘There is no greater tyranny than that which is perpetrated under the shield of law and in the name of justice.’”
The filing represents tens of thousands of churches and ministries including more than 3 million members in the United States.
“Same-sex attracted individuals have never lawfully been forced to attend different schools, walk on separate public sidewalks, sit at the back of the bus, drink out of separate drinking fountains, denied their right to assemble, or denied their voting rights. The legal history of these disparate classifications, i.e., immutable racial discrimination and same-sex attraction, is incongruent. Yet, courts continue to mistakenly draw upon this incongruence as the basis for what they now deem ‘marriage equality,’” the brief says.
“The appellants wish to replace the morality of the Judeo-Christian tradition on which our country was founded with the trendy, relativist morality of political correctness.”
Another brief, from the Alliance Defending Freedom, outlines the benefits to society of the traditional family of a married mother and father and their children.
“Man-woman-marriage laws substantially further the state’s interest in linking children to both of their biological parents. Therefore, those laws easily satisfy the deferential rational-basis standard that applies here,” the brief says.
“The people of Louisiana – and every state – should continue to have the freedom to affirm marriage as the union of a man and a woman in their laws,” said ADF Senior Counsel Byron Babione. “The district court in this case was right to conclude, as the U.S. Supreme Court did in its Windsor decision last year, that marriage law is the business of the states. States that choose to affirm marriage as a man and a woman have vital reasons for doing so.”
Headed for Supreme Court?
WND reported last week a three-judge panel of the 6th U.S. Circuit Court of Appeals affirmed the rights of voters in four states – Kentucky, Michigan, Ohio and Tennessee – to define marriage as the union of one man and one woman.
The decision followed a long list of federal court decision that have adopted the premise that “equality” of marriage means there is no difference between the sexes.
The U.S. Supreme Court recently had refused to take on any same-sex marriage cases, allowing the movement to expand into about 30 states, but the 6th Circuit decision may change that, according to analysts.
Mat Staver, chairman of Liberty Counsel, which has fought on behalf of traditional marriage, said, “With a divide in the appeals court rulings, the Supreme Court will likely take up the issue.”
Previous rulings from the high court on the issue have found that the institution is necessarily defined as the union of one man and one woman. In 1942, it said marriage is “fundamental to the very existence and survival of the race.” In 1888 it ruled, “An institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.”
Staver said 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.”
The 6th Circuit said no federal judges should be making such a decision.
“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.”
The pro-homosexual Marriage Equality organization called the ruling “out of step with the decisions of 40 other courts.”
The organization said states as diverse as “Oklahoma, West Virginia, and Utah” recently have “embrace[d] marriage equality.”
But the organization did not note that a vast majority of the states that have “embraced” same-sex marriage have done so largely by judicial decree, after voters in many of those states specifically chose to define in their laws or even constitution marriage as one man and one woman.
Before federal judges stepped in, the wave of state affirmations of traditional marriage was virtually unstoppable, with victories in 31 of 31 elections.
The 6th Circuit 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, if not all, of our ancestors, and shared still today by a significant number of the states. … One starts 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.”
Written by BOB UNRUH
Read more at WND