November 22nd 2014

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EDITORIAL How Obama has eroded America's global influence

CANBERRA OBSERVED China FTA: more about diplomacy than trade

FAMILY POLICY Canada introduces income-splitting for families

VICTORIAN STATE ELECTION Freedoms under threat if Labor wins

MARRIAGE Historic U.S. court ruling upholds man-woman marriage

UNITED STATES U.S. midterm elections change American political landscape

UNITED STATES Democrats threatened voters at midterm elections

EUROPE Why thousands of Jewish citizens are leaving France

CLIMATE CHANGE Why is Coalition spending billions to cut CO2 emissions?

SOCIETY From farmers' markets to money markets

SOCIETY Slavery and trafficking are still big business


CINEMA Do not go gentle into that good night

BOOK REVIEW Contemporary reporting of World War II

BOOK REVIEW The criminalisation of fathers and parents

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Historic U.S. court ruling upholds man-woman marriage

by Patrick J. Byrne

News Weekly, November 22, 2014

After a long string of court victories, the American campaign to redefine marriage has lost a major case in the powerful U.S. Court of Appeals for the 6th Circuit. The decision will have far-reaching consequences. 

Judge Jeffrey Sutton

At recent referenda in the states of Michigan, Ohio, Kentucky and Tennessee, clear majorities of voters supported natural marriage. However, activist judges in lower courts subsequently ruled that these referenda decisions were unconstitutional, effectively allowing marriage to be completely redefined to include same-sex couples.

In response to these court decisions, an appeal was made to one America’s most senior courts, the Court of Appeals for the 6th Circuit. Last week, this court overturned the lower court rulings and upheld the original referenda decisions in favour of man-woman only marriage in the four states under its jurisdiction.

The 6th Circuit decision follows two other Federal Court decisions in Louisiana and Puerto Rico that upheld man-woman only marriage and rejected same-sex marriage.

A few points about the U.S. judicial system help to explain the importance of the 6th Circuit decision.

The U.S. has 10 Circuit Courts of Appeal, each covering a designated cluster of states.

They are considered among the most powerful and influential courts in the U.S., because of their ability to set legal precedents in regions that cover millions of Americans. They have strong policy influence on United States law. 

The 6th Circuit’s decision — in favour of natural marriage for Michigan, Ohio, Kentucky and Tennessee — places it in direct conflict with contrary decisions of the 4th, 7th, 9th and 10th Circuit Courts. 

These latter courts had ruled in favour of redefining marriage in about two dozen states by overturning state referenda/legislation that had defined marriage as being between one man and one woman only. 

It now appears that the conflicting decisions between these powerful courts will be taken to America’s highest court, the U.S. federal Supreme Court. 

Until now, the Supreme Court has refused to intervene in decisions by the courts of appeals involving the definition of marriage.

Judge Jeffrey Sutton led the two-to-one decision by the 6th Circuit Court of Appeals. The 42-page decision is an instructive defence of man-woman only marriage. It is also a critique of, and a caution to, those wanting to redefine marriage.

 Dr Ryan T. Anderson

The following is adapted from an analysis of the judgment provided by Ryan T. Anderson, PhD, who conducts research on marriage and religious liberty as the William E. Simon Fellow at the Washington-based think-tank, the Heritage Foundation.

The judgment addresses the issue of why the state is involved in legislating on marriage.

First, while those wanting to redefine marriage argue that marriage is about two people loving each other, the court notes that governments don’t regulate love. Rather, governments “regulate sex, most especially the intended and unintended effects of male-female intercourse”.

The court explains its reasoning in this way: “Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children.” 

It goes on to ask: “May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? 

“That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.”

The court says that people don’t “need the government’s encouragement to have sex” or “to propagate the species”, but people “may well need the government’s encouragement to create and maintain stable relationships within which children may flourish”. 

This need for marriage policy is based on human nature: “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.”

Marriage policy is necessary as an “incentive for two people who procreate together to stay together for purposes of rearing offspring”.

The court concluded 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 decision cautions against other courts overturning the referenda decision of voters in favour of a radical redefinition of marriage, particularly given the long tradition of rationality undergirding marriage laws. 

“How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage? 

“A state still assessing how this has worked … is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere. 

“Even today, the only thing anyone knows for sure about the long-term impact of redefining marriage is that they do not know.”

The court also explained why narrow arguments, like “marriage is all about love”, fail.

“Their definition … fails to account for the reality that no State in the country requires couples, whether gay or straight, to be in love.”

At the same time, a re-definition of marriage being only about “love” would have no limiting principle. It would lead to the redefinition of marriage to include every consenting adult relationship, including polygamy or polyamory. 

As the court explains: “Their definition … 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.” 

The court has also ruled that it was reasonable for the voters in these states to define marriage as they have. 

When it comes to the actual text of the U.S. Constitution, there is no right to same-sex marriage: “The right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognising a fundamental right to same-sex marriage does not exist.”

So what about the right being implicit because of “bedrock assumptions about liberty”? The court’s answer: “This too does not work.”

The court has also answered the argument that banning same-sex couples from marriage is like banning a black person from marrying a white person. This referred to a time in American history when interracial marriage was prohibited in some states. 

As the court rightly notes, when the U.S. Supreme Court struck down bans on interracial marriage in 1967, it “addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage”.

The court goes on to acknowledge that same-sex couples have experienced unjust discrimination under some laws, but marriage laws are not a form of discrimination against such couples:

“We also cannot deny that the institution of marriage arose independently of this record of discrimination. The traditional definition of marriage goes back thousands of years and spans almost every society in history. 

“By contrast, ‘American laws targeting same-sex couples did not develop until the last third of the 20th century’.”

The court, in its decision, has argued against claims by lower courts that banning gays from marriage was a violation of the U.S. constitution — a violation of the 14th Amendment. 

The 14th Amendment of 1868 provides equal protection of citizenship rights under the law, and was proposed in response to issues related to former slaves following the American Civil War. 

The 6th Appeals Court, in its ruling, noted that “not a single U.S. Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the 14th Amendment”. 

The court has defended the right of U.S. citizens to decide the future of marriage through the political system, and not have courts overrule state referenda on marriage.

The court says that any change to marriage, if it should come, should occur “through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

“When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers.”

Ultimately, the 6th Circuit Court has ruled that it will not usurp the authority of the American people to discuss, debate and make marriage policy. 

The ruling argues that change could come in only one of two ways: either through judicial-activist judges usurping the political process, or else through the political process, such as people voting in a state referendum.

And the court has rightly refused to take the former course. 

Instead, the court has argued that the political process should be respected, saying that it “is dangerous and demeaning to the citizenry to assume that we, and only we [i.e., the judges], can fairly understand the arguments for and against gay marriage”. 

What happens to marriage next in America will depend on what decisions are made by the U.S. Supreme Court.

Patrick J. Byrne is national vice-president of the National Civic Council. 



Ryan T. Anderson, “No constitutional right to same-sex marriage, Circuit Court rules”, The Daily Signal (Heritage Foundation, Washington DC), November 6, 2014.


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