Aug 7, 2014
Column #1,719
“Hope for Traditional Marriage”
By Mike McManus

For the first time, after 20 consecutive court cases in recent months supporting same-sex marriage, there are reasonable grounds for hope that traditional marriage will be upheld by a three-judge federal appeals court in Cincinnati. If so, it would overturn four lower federal courts.

What’s more, it involved six cases in four states whose constitutions limit marriage to one man, one woman – Michigan, Tennessee, Kentucky and Ohio.

That might prompt the U.S. Supreme Court to take the case. Another reason it might do so is that two other federal appeals courts have ruled in favor of gay marriage – one in Virginia and another involving Utah and Oklahoma. When federal appeals courts differ on what is constitutional, the Supreme Court often feels it must decide the issue.

What are the grounds for hope in this week’s case?

First, a new study by the Centers for Disease Control estimated that only a tiny 1.6% of Americans are gay or lesbian plus another .7% who are bisexual. That’s a total of only 2.3%. A Gallup Poll recently revealed that Americans think 25% are gay or lesbian – 11 times as many.

Second, and most important, two of the three judges are conservatives appointed by President George H. Bush.

Third, one of those two judges, Jeffrey Sutton, repeatedly asked attorneys for same-sex couples whether the courts are the best place to legalize gay marriage, saying that the way to win Americans’ hearts and minds is to wait until they’re ready to vote for it.

“I would have thought the best way to get respect and dignity is through the democratic process. Nothing happens as quickly as we’d like it,” he said. Sutton asked why gay rights advocates wanted to use the courts to hasten an outcome they were gradually winning through elections and changes in attitude.

When the lawyer for Michigan said the courts should not tamper with an institution as deeply rooted as marriage, Judge Martha Craig Daughtrey, a Bill Clinton appointee, noted that bans of interracial marriage were also deeply rooted before the Supreme Court found them unconstitutional. “That was the law across a huge swath of the Southern states,” she snapped.

Similarly, it was a Massachusetts Supreme Judicial Court ruling for gay marriage that prompted Massachusetts to pass the first law legalizing it in 2004.

However, “same-sex marriage is a novel concept that is not as old as either Google or Facebook,” argues Chris Gacek of the Family Research Council.

He notes that in 1997 the Supreme Court promulgated a two-part test in the landmark case, Washington v. Glucksburg. First, the Court requires the presentation of a “careful description of the asserted fundamental liberty interest.”

Secondly the right must be “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” The sought-after right must be “implicit in the concept of ordered liberty so that “neither liberty nor justice would exist if (it was) sacrificed.”

Clearly, traditional marriage does not blot out liberty and justice.

However, Judge Daughtery had a point in noting that giving women the right to vote took decades. “Do you have any knowledge of how many years I’m talking about, going into every state, every city, every state board of education, for 70 years? It didn’t work; it took an amendment to the Constitution.”

However, the exact opposite is happening with gay marriage. In just eight months there have been more than 20 court rulings backing same-sex marriage. And, as Judge Daughtrey noted, “It doesn’t look like the sky has fallen.”

The third judge, Deborah Cook, another Bush appointee, asked few questions, but she seemed to favor the right of states to choose traditional marriage.

Carole Stanyar, representing gay Michigan plaintiffs, bemoaned the often slow pace of the democratic process and said she doesn’t see such a change coming to her state in the near future. “In my state, nothing is happening to help gay people.”

That’s not quite true. In fact, three lesbian couples who are plantiffs in one case, each sat in the courtroom gallery for the afternoon, with a newborn baby, each of whom alternatively were cooing or feeding on bottles. That is real change, even if it is not called marriage.

Attorneys for all four states defended their limitation of marriage to opposite sex couples. They argued that any change should come from voters and that same-sex marriage is too new to be considered a deeply rooted fundamental right.

“The most basic right we have as a people is to decide public policy questions on our own,” said Michigan Solicitor General Aaron Lindstrom.

I predict the Sixth Federal Circuit Court of Appeals will agree.

If so, that will be a breath of fresh air.