A month ago, the U.S. Supreme Court refused to hear a collection of cases which raised the question of traditional marriage vs. same-sex unions. Now, a Sixth Circuit Court of Appeals decision may have changed all of that. By voting 2-1 to uphold same-sex marriage bans in four states under the appellate jurisdiction of the Sixth Circuit???Kentucky, Michigan, Ohio, and Tennessee???the panel has now created a conflict between the circuits. This conflict exists because four other federal circuit courts had found bans on same-sex unions to be unconstitutional. We know now, at least according to statements from Justice Ruth Bader Ginsburg, that a lack of a conflict between the circuits was the reason the Supreme Court balked at hearing the earlier cases from five other states.
The Sixth Circuit majority opinion in DeBoer v. Snyder, written by Judge Jeffrey Sutton, is worth reading because it carefully discusses the major points of disagreement. The key question is whether ???the 14th Amendment prohibits a State from defining marriage as a relationship between one man and one woman.??? Judge Sutton zeroes in on the essential issue: ???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 process???? The majority answer is quite clear. Today???s marriage laws should be allowed ???to stand until the democratic processes say they should stand no more.???
Sutton???s opinion uses a ???rational basis??? review in assessing the marriage laws of Michigan, Ohio, Kentucky, and Tennessee. This is a common approach followed by courts to evaluate if state laws pass constitutional muster. Basically, the court must determine if there are good reasons for a state to protect traditional marriage. Does the law ???rationally advance a legitimate government policy???? Yes, clearly, says the opinion. The states in question established ???ground rules??? needed to create ???stable family units for the planned and unplanned creation of children.??? The court continues, saying that ???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.???
The court acknowledges that in this day and age that is not the only way some view marriage. Yet, the fact that there are other more expansive or inclusive views of marriage does not dictate that states ???suddenly must look at this policy issue in just one way on pain of violating the Constitution.??? Sutton later writes that ???[o]ne of the key insights of federalism is that it permits laboratories of experimentation???accent on the plural???allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time.??? Sutton writes that the States are wise to exercise a ???Burkean sense of caution??? when it comes to redefining such a fundamental and long-standing institution as marriage and that, ultimately, such decisions are better left to ???elected legislators, not life-tenured judges.???
In DeBoer v. Snyder the court addresses the claim, sometimes raised by supporters of same-sex unions, that the resulting state laws or constitutional initiatives succeed because of ???animus??? against homosexuals and those motivations make the resulting bans on gay unions constitutionally suspect. Judge Sutton reminds readers that assessing the motivations of millions of citizens who voted for gay marriage bans in Michigan (2.7 million), Kentucky (1.2 million), Ohio (3.3 million), and Tennessee (1.4 million), ???strains judicial competence.??? Some favored the ban for some reasons; others for other reasons, but the courts are ill-suited to delve into the complicated ???aggregation of factors??? that motivates voters.
It is likely that the Supreme Court will abide by its own rules and accept one or more of the traditional marriage/same-sex union cases for review. Then the question becomes whether there will be five justices who: 1) graciously defer to democratically determined outcomes on this issue; 2.) respect American federalism, which recognizes that states retain the power to act in this highly-charged area; and 3) will be reluctant to judicially remake two of the central institutions of organized society: marriage and family.
Editor???s Note: The Chief Judge of the Sixth Circuit, the Honorable Alice Batchelder, is a trustee of Grove City College.