These issues must be settled by America’s people, not by black-robed tyrants swinging gavels like sledgehammers.
Yesterday, the 6th Circuit Court of Appeals struck a reverberating blow on behalf of natural marriage and the Constitution by upholding bans on sodomy-based marriages in its jurisdiction.
It is impossible to overestimate the importance of this ruling.
It means, for one thing, that the issue is now on the fast track to the Supreme Court. If the Court accepts a marriage case by January, a decision will almost certainly be issued by next June.
From a constitutional standpoint, the 6th Circuit’s ruling is a model of sound jurisprudence. The ruling observes that the Supreme Court has already settled the question of the role of the states in defining marriage, in the 1972 case Baker v. Nelson. It’s often forgotten that the first challenge to bans on gay marriage were raised over 40 years ago, and the Court ruled flatly in Baker that Minnesota’s ban on same-sex marriage did NOT raise “a substantial federal question.”
In plain English, it means that defining marriage is exclusively an issue for the states to decide. The federal government, including the judiciary, has precisely zero authority to impose its own twisted definition of marriage on the states. None, zip, nada.
Now liberals are big-time fans of stare decisis, the doctrine that prior rulings create binding precedents that must be respected. If their precious principle of stare decisis has any abiding relevance, it’s game over. The issue was settled in 1972 and that precedent is still binding today. End of discussion. Marriage policy is something for the states alone to decide.
That marriage is the exclusive domain of the states is plain from the language of the Constitution itself. More precisely, this is plain from the language that is not in the Constitution. The words “marriage” and “homosexuality” never occur, not even a single time. You can read the Constitution left to right, right to left, upside down, and in Sanskrit and you will never, ever run into the word “marriage.” It’s not in there.
Article I, Section 8 lists all the powers of action that “We the People” have conferred upon the central government. If a power of action is not listed there, the central government has no legal or constitutional right to exercise it.
According to that same Constitution, the 10th Amendment thus reserves exclusively to the states every other power of action, including the power to define marriage. No authority, none, not even a smidgen of authority is given in our Constitution to the central government to decide questions of domestic policy.
And no state can be dictated to on this matter by another state, even through a feeble attempt to invoke the “full faith and credit” clause. Said the 6th Circuit, “states have always decided for themselves when to yield to laws of other states.” Quite simply and quite correctly, the court ruled that if a state doesn’t want to recognize a gay marriage performed in another state, it doesn’t have to.
Along the way, the court ruled that the 1967 Loving v. Virginia ruling, overturning a state ban on interracial marriage, is irrelevant, because that ruling left intact the definition of marriage as the union of one man and one woman. It didn’t change the fundamental character or understanding of marriage at all.
Importantly, the 6th Circuit ruled that the only standard state bans need to reach is the “rational basis” test. That is, if it can be demonstrated that there is a rational foundation for a ban on sodomy-based marriages, such a ban is perfectly constitutional. There are abundant reasons to reserve marriage for man-woman unions, including public health issues (homosexuality is the number one risk factor for HIV/AIDS and is a risk factor for an enormous number of sexually transmitted diseases) and creating stable family relationships that provide the optimal nurturing environment for the raising of children.
Tellingly, the court ruled that there is no evidence that amendments upholding natural marriage were motivated by “animus” towards gays and lesbians. The judges pointed out that courts would have to be able to read the minds of 8.6 million voters to make a determination about their motives. That is obviously something that no court could do even if it was entitled to try.
Lastly, the court said - and this is huge - that “the federal courts have no long-lasting capacity to change what people think and believe about new social questions.” These issues must be settled by America’s people, not by black-robed tyrants swinging gavels like sledgehammers.
There is much to celebrate in this ruling. Perhaps, just perhaps, we have taken our first step away from the edge of the moral abyss.