If you get one thing out of the Sixth Circuit’s recent opinion affirming that states are not constitutionally required to fundamentally alter the meaning of marriage, it should be this: people of good will may disagree on whether redefining marriage is good or bad policy, but the Constitution doesn’t answer the question, and it certainly doesn’t require that policy decisions be taken out the hands of the people.
As Judge Sutton put it “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.”
That said, these five points are the Sixth Circuit’s opinion in a nutshell:
1. The Supreme Court already decided that states’ marriage laws don’t violate the Fourteenth Amendment, and lower courts are not allowed to ignore the Supreme Court.
Federal courts have been ignoring a 1972 Supreme Court ruling that dismissed the same legal claims that are being raised today by attorneys challenging state marriage laws. The Sixth Circuit recognized that only the Supreme Court can revisit that question and lower courts are legally bound to adhere to the Supreme Court’s prior ruling.
2. No plain reading of the Fourteenth Amendment could lead one to believe that the Constitution required states to change the definition of marriage.
The plaintiffs in the case didn’t even try to argue that the actual original meaning of the Constitution (as amended in 1868) required states to redefine marriage. That position would be wholly unsupportable. Instead of the Constitution’s text, challengers to marriage laws rely on “evolving” concepts of liberty. But that, the Court held, would “convert federal judges from interpreters of the [Constitution] into newly commissioned authors if it.”
The Court discussed a recent ADF Supreme Court win to support that point. In Town of Greece v. Galloway, the Supreme Court concluded that since the Founders opened public meetings with prayer, they couldn’t possibly have meant for the Constitution to ban public prayer. The authors of the Fourteenth Amendment, who were well aware of the definition of marriage at the time of its ratification, could not have meant what marriage opponents are saying it now means.
Memo from the Court: in case you haven’t heard, judges are supposed to read the Constitution and rule in accordance, not re-write it or read into it what it’s not saying.
3. It is rational for the state to affirm marriage, and not “license love.”
The Sixth Circuit recognized, like the Eight Circuit did in 2006, why the government is “in the marriage business”: “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.” “Governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate . . . the intended and unintended effects of male-female intercourse.” Some states now license relationships outside that definition, but that is for the state policymakers to decide, not for judges to foist on sovereign states.
4. There is no fundamental right to redefine marriage.
The Constitution guarantees that all citizens have the right to due process of the law before the government takes their life, liberty, or property. That right is not violated when the state continues to preserve marriage as a union between a man and woman.
5. Equal protection principles do not require the state to ignore biological reality.
Under the Equal Protection Clause, states are required to treat alike things that are, in fact, alike. The fact is, man-woman couples are biologically and physiologically distinct from other relationships, and the state has an interest in encouraging moms and dads to marry and jointly raise the children that they create through their union. While there are policy disagreements over these laws, there is no constitutional crisis when the state recognizes biological realities, regulates marriage as it always has, and declines to fundamentally alter the essence of society’s most stabilizing social good.
Bottom line: As the story of Humpty Dumpty in Alice in Wonderland tells us, words mean something; and one cannot declare the meaning of the Constitution or of the word marriage to be whatever one wants it to be.
Wondering about the state of marriage? View the updated State of Marriage resource here, and share it with others.