Judge Sutton recognizes "unique procreative possibilities" of opposite-sex matrimony.
If the Supreme Court takes up a new case about same-sex “marriage,” as it seems likely it will, the nine justices will have a case that is a clearly-reasoned defense of traditional matrimony.
A federal appeals court Thursday halted a run of rulings supporting same-sex marriage by the U.S. courts that are the last line for appeals just below the Supreme Court.
The 6th U.S. Circuit Court of Appeals panel instead upheld laws against the practice in four states — Ohio, Michigan, Kentucky and Tennessee.
Attorneys for gay plaintiffs say they will ask the Supreme Court to hear their arguments, and the split created Thursday among the federal appeals courts makes it more likely they will agree to this time.
Justice Ruth Bader Ginsburg had explained in a September speech in Minnesota that the lack of a split in the appeals courts made Supreme Court review of the issue unnecessary. But she said "there will be some urgency" if the 6th Circuit allowed same-sex marriage bans to stand.
One month ago, the Supreme Court turned away appeals from five states seeking to uphold their same-sex marriage bans. That action had the effect of further expanding gay marriage.
The 6th Circuit panel, in its 2-1 ruling, said changing the definition of marriage should be done through the political process, not by judges and lawyers.
"Surely the people should receive some deference in deciding when the time is ripe to move from one picture of marriage to another," wrote Circuit Judge Jeffrey Sutton, writing for himself and a fellow George W. Bush appointee.
Scholars and activists who have been arguing against changing the definition of marriage hailed Sutton’s written decision.
“It lays out some places where the Supreme Court is going to have to rule,” said Jennifer Roback Morse, founder of the Ruth Institute. Sutton, she noted, calls attention to the fact that the high court already ruled that marriage is a state, not a federal, issue, setting a binding precedent that has never been overturned.
As Sutton explained, in the early 1970s, a Minnesota gay couple managed to get a Methodist minister to “marry” them, but the state refused to issue a marriage license. The Minnesota Supreme Court sided with the clerk, saying, “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 society interests for which petitioners contend.
The US Supreme Court turned down the couple’s appeal, saying the appeal did not raise “a substantial federal question.”
Sutton said the high court’s decision confines lower federal courts in later cases. “Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions ‘until such time as the Court informs us that we are not,’” he wrote, quoting a 1975 Supreme Court decision.
That would have been enough to decide the case by itself, said Sherif Girgis, co-author of "What is Marriage? Man and Woman: A Defense," and a research scholar at the Witherspoon Institute. “I don’t think the dissent or any other case has given a good answer to it. But I also think Judge Sutton was wise to go on to explain extra things that maybe aren’t strictly necessary, because the Supreme Court…can decide to overrule [the 1970s] case. Then the question will be, ‘Should they?’ Sutton has shown there are no constitutional arguments for that.”
For example, Sutton shoots down the idea that traditional marriage laws are the result of any animus people may have against homosexuals, the way that interracial marriage bans of the past were based in an animus against African-Americans. “It does that by the very simple historical observation that [traditional marriage] laws span the spectrum across continent and millennia, in a way that makes it impossible to attribute them to animus towards a group" that been publicly identifiable only in relatively recent history, Girgis said. “The interracial marriage bans grew up only in the context of the Jim Crow laws, whereas the traditional definition of marriage stretches far back before the period in which legal, state and federal officials concentrated on any kind of gay relationships.”
Sutton also defends the claim that “it’s reasonable for people to think that there’s a special relationship between opposite-sex relationships and the common good, which is really what you need to show that this is not arbitrary and it’s not discriminatory; it’s not a violation of equality,” Girgis explained. “He shows that the opposite argument would just prove too much. The argument that love and commitment are all that make a marriage would mean that restricting marriage to two-person relationships is just as arbitrary because, of course, three people can have love and commitment and nobody has produced a study saying three parents are worse for kids than two.”
In his long opinion, Sutton wrote of the necessary connection between marriage and procreation, the reason states regulate the institution:
Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means. People…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.
John Burger is news editor for Aleteia’s English edition.
AP contributed to this report.