Last Thursday, in a 2 to 1 decision, the Sixth Circuit Court of Appeals held that Tennesseans, along with their fellow Americans in Kentucky, Michigan, and Ohio, were not prohibited by the U.S. Constitution for deciding for themselves what their state’s definition of marriage should be. After Justices in four other Circuit Courts pretended to be champions of constitutional rights, it was great to see a real champion step into the courtroom and knock down the superficial reasoning and constitutional sleight of hand their colleagues had put forth.
Judges in four other Circuits, impressed by their own intellect and intoxicated by the power they have arrogated to themselves, decided that no rational person could believe marriage was between a man and a woman. So it was refreshing to read what Justice Sutton 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.”
Nothing like reminding your colleagues that they just might not be smarter and more rational than millions of Americans for the past 200 years.
Then, after dispensing a little wisdom on judicial humility for the U.S. Supreme Court Justices to consider when they take up the issue, Justice Sutton exposed how inane the “marriage equality” argument is. It’s just too good not to quote in full:
“Consider how plaintiffs’ love-and-commitment definition of marriage would fare under their own rational basis test. Their definition does too much because it fails to account for the reality that no State in the country requires couples, whether gay or straight, to be in love. Their definition does too little because it fails to account for plural marriages, where there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point. What they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage.” (emphasis added)
In other words, those judges who want to make the Constitution require states to adopt a “love and commitment” definition of marriage are really forcing on the Constitution (and on us) a marriage-means-anything-and-everything definition of marriage. The U.S. Supreme Court, and all Americans, need to consider the precedent they are asking the Court to “write into” our constitutional jurisprudence.
Lastly, Justice Sutton’s judicial counterparts have asserted that that state marriage amendment initiatives were based on animus, fear, and prejudice. So I couldn’t help but smile when I read this:
“If there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.”
In other words, judicial tyranny gave rise to the marriage amendments. And, in my opinion, the judicial tyrants in the other Circuits just don’t like the idea of people voting to be free of their grip.
Ultimately, that is really the issue underlying the marriage debate—will we allow ourselves to be governed by judicial tyrants who twist words and concepts to write into the Constitution their own political philosophies, or will we govern ourselves except where the Constitution is clear? And it has been clear since our Republic was founded and our Constitution adopted that marriage is the relationship between one man and one woman. Those who want it otherwise need to amend the Constitution through the political process and not through the courts.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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