Marriage – Who Decides?

November 24, 2014

Commentary, Policy

By Jeff Johnson

Judge Holding DocumentsOn November 6, 2014, the United States Court of Appeals for the Sixth Circuit issued its long-awaited opinion in six cases from the states of Michigan, Ohio, Tennessee and Kentucky.  The cases involved the issue of same-sex “marriage”, and attempts by same-sex “couples” to force same-sex “marriage” on those states.  More specifically, the cases boiled down to whether, under the U.S. Constitution, federal judges could unilaterally redefine marriage when a state’s citizens have confirmed its natural meaning by voting to enshrine that natural meaning in the state’s constitution.  Marriage in these four states (and, until recently, all fifty states) had always been limited to opposite-sex couples, and citizens of each of these states voted by large majorities  to constitutionally define marriage as only the union of one man and one woman.  In spite of this, federal judges in each of these states ruled against the States and their citizens, imposing same-sex “marriage.  Each of the four states appealed to the Sixth Circuit, asking the judges to side with the U.S. Constitution and the people, and prevent this unilateral judicial redefining of marriage.  In light of the fact that every other federal circuit court that had ruled on similar marriage cases this year had thrown out the traditional definition of marriage, a victory for the U.S. Constitution and traditional marriage in the Sixth Circuit seemed far from a sure thing.

But a wonderful thing happened on November 6th:  Two federal judges took seriously their role to interpret the U.S. Constitution rather than “reinvent it” according to their own political beliefs.  They refused to succumb to the pressure and the perceived momentum and aura of “inevitability” of same-sex “marriage.”  Instead, they issued a solid, well-reasoned opinion defending the right of states to define marriage, and upholding the definition of marriage as it has existed for thousands of years.  The opinion, written by Judge Jeffrey Sutton and joined by Judge Cook, is very readable, and a tutorial on how constitutional analysis should be handled by our federal judges.  The opinion addresses head-on the arguments offered by the Plaintiffs and the circuit courts that have thrown traditional marriage, the will of the people, and the power reserved to the states under the bus, and clearly demonstrates that those arguments completely fail to make a case for ripping the definition of marriage from the states and the people.  It clearly shows that whether one applies the U.S. Constitution directly, or various “tests” used by the Supreme Court to decide if “new” rights should be recognized, same-sex “marriage” fails.  There is simply NO support in the U.S. Constitution for the federal judiciary imposing same-sex “marriage” states.  The bottom line, paraphrasing Judge Sutton, is that this is not about what the definition of marriage is, but about who has the power to decide what the definition of marriage is.  The conclusion:  the U.S. Constitution leaves this issue to the people and states, NOT to a handful of federal judges.

In addition to being a fantastic victory for marriage on its face (preserving one-man, one-woman marriage in Michigan, Ohio, Tennessee and Kentucky), the decision is excellent because its conclusion is reached only after thorough, detailed analysis (and well-reasoned refutation) of every so-called constitutional argument raised by the anti-marriage plaintiffs and judges.  This means that when these cases reach the Supreme Court, the Supreme Court will have a hard time making a ruling against marriage without clearly addressing Judge Sutton’s arguments.  Getting around his opinion and somehow claiming that there is a constitutional requirement that states permit same-sex “marriage” would require, in my opinion, such hand-waving that it will be obvious to almost everyone that the Supreme Court is simply imposing its own political will and ignoring the U.S. Constitution and federal precedent.  In addition, had the Sixth Circuit not ruled in defense of marriage, it is entirely possible that all of the circuit courts in the country would have imposed same-sex “marriage” without the states ever having had an opportunity to argue their position before the Supreme Court.

This decision is also important as an encouragement to other circuit courts soon to consider this issue to follow Judge Sutton’s lead, not cave in to pressure, and follow the U.S. Constitution, thus also increasing the pressure on the Supreme Court to actually follow the Constitution.  The decision also serves as a reminder of the importance of making sure that we elect a President and U.S. Senators who will only appoint and approve judges who will follow the Constitution.  That a number of circuits (and many federal district court judges) have been so willing to impose their will and impose same-sex “marriage” in spite of the fact that doing so clearly violates the Constitution, shows just have far we have fallen in a few short years with a President and Senate appointing and confirming liberal, activist judges.  This damage is long-lasting, as these are lifetime appointments.

Given this decision, it is almost certain that the Supreme Court will take up this issue in its next term.  In fact, only a few days ago (November 17th), the Michigan plaintiffs filed an appeal of the Sixth Circuit decision to the Supreme Court.  Although the Supreme Court is not required to hear their appeal, it is difficult to foresee a scenario in which they do not take this case.  This means that by 2016, and probably by June of 2015, the Supreme Court will rule on this issue.  Although this Sixth Circuit decision is a great victory for the U.S. Constitution and marriage, there is good cause for concern about what will happen at the Supreme Court.  Based on past rulings, it seems likely that there will be four judges pushing to ignore the U.S. Constitution and impose same-sex “marriage”, four judges pushing to follow the Constitution and leave it with the states and the people, and Justice Kennedy squarely in the middle.  Based on Justice Kennedy’s arguments in certain previous opinions (such as, for example, Lawrence v. Texas and Romer v. Evans), and depending on how you interpret his opinion in last year’s Windsor decision, there is definite cause for concern that Justice Kennedy may be the fifth vote to impose same-sex “marriage.”  However, Judge Sutton’s opinion will at least force Justice Kennedy and the other justices to confront the constitutional issues head on.  Perhaps it will also help them to recognize that if they vote to impose same-sex “marriage”, they will be seriously jeopardizing any reputation they might have as jurists whose fidelity to the Constitution trumps their desire to impose their political will.

We hope that the Supreme Court follows the Constitution and refuses to impose same-sex “marriage” and remove authority on this issue from the states and people where the Constitution has placed it.  However, if the Supreme Court does “create” a constitutional right to same-sex marriage and impose that on the states, I believe that we will have entered new and dangerous territory in terms of the loss of our rights as citizens.  Keep in mind that dozens of states have laws and/or constitutions that define marriage as one man and one woman (and before the courts started getting involved in this, almost all states had this definition).  Although the U.S. Supreme Court has overruled state constitutions before, this would be the first time it has done so in an area where it so clearly lacks any constitutional authority to do so, and on such a large scale.  Effectively, the Supreme Court will be saying, “even though the Constitution doesn’t allow this, we are doing it anyway” – a raw, extra-constitutional assertion of power.

If the Supreme Court is willing to impermissibly redefine marriage today, where will it stop?  Yesterday it was abortion, today it is same-sex “marriage”, tomorrow it will be whatever new policy the activist judges think needs to be imposed on the states and the people.  There doesn’t seem to be a logical stopping point, short of the people and states taking significant action to rein them in.  The founders gave us a Republic with three co-equal branches, not an imperial judiciary with the power to overrule the people, states, and legislature to arbitrarily impose its will.  Clearly the U.S. Constitution allows the people and the states to decide this issue (and other issues like abortion) that have been impermissibly claimed by the federal courts.  We need to start taking back the power that has been taken from us by activist liberal judges.

Because of the importance of this issue (and others, such as abortion), we need to take action to restore the federal judiciary to its constitutional boundaries, and to restore the power it has improperly taken from the people and the states to them.  There are a number of things that can be done.  First, because Presidents appoint federal judges, we need to make sure that we nominate presidential candidates who are committed to appointing judges committed to a philosophy of interpreting the Constitution and Amendments as ratified (“constitutionalist” judges), and who will not engage in policymaking from the bench.

Next, because the Senate has the constitutional role of advice and consent with respect to a President’s nominees to the federal bench (no life-tenured judge takes the bench without them voting to approve that judge), we must redouble our efforts to nominate and elect U.S. Senators committed to only approving constitutionalist judges.  If they don’t commit to this, we don’t support them.  We also need to begin putting pressure NOW on our Senators to not approve ANY judges who are not constitutionalist judges.  This President has been a disaster in terms of the appointments to the federal bench, and the next two years will be more of the same unless the Senate is committed to only approving constitutionalist judges.  The President is not entitled to have judges approved by the Senate who have a philosophy that is clearly at odds with our Constitution.  Addressing both the Presidency and the Senate can be a first step in bringing the judiciary back in line with the Constitution.

The November 6th decision was a fantastic victory for those who believe in our U.S. Constitution and in God’s design for marriage.  We should be grateful to God for this decision, and also grateful to Judges Sutton and Cook for taking their responsibilities seriously and standing for our Constitution and Republican form of government.  Moving forward, we can be praying that as this moves to the Supreme Court, the justices will follow the Constitution and affirm God’s definition of marriage.  We can also begin working now to get a President and Senators elected down the road who will give us “constitutionalist” judges.  Justice Sutton’s comment that “this is about who decides” applies not only to marriage, but also to abortion and other cases.  Activist judges think they should be deciding.  They will ultimately win unless we all take action.  Ultimately, we decide who decides.

TestJeff Johnson is Of Counsel to Schmeiser, Olsen and Watts, LLP, focusing on intellectual property protection and related litigation. He also assists and advises non-profit organizations defending traditional values (marriage, life, and religious liberty), serves on the boards of religious and secular non-profits, and educates organizations about developments in the courts related to federalism, liberty, and traditional values. Jeff may be contacted at mr.jeff.johnson@gmail.com
The opinions of guest columnists do not necessarily reflect the views of Citizens for Traditional Values.

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