Editor’s note: Utah is now at the heart of the debate over same-sex marriage. The state’s Amendment 3, which defines marriage as between a man and a woman, was challenged in court as unconstitutional and was subsequently struck down by a federal judge in 2013. Utah appealed that verdict. On Wednesday the U.S. Court of Appeals for the 10th Circuit ruled against Utah, 2-1. If this case is appealed to the Supreme Court, which appears likely, the court’s decision may decide the future of marriage for decades – for the entire country.
Does the right of self-determination extend to voters’ decisions to protect children’s entitlement to be reared by a married mother and father? We learned this week that two judges on the 10th Circuit Court think the answer is no. One of their colleagues, however, wrote a strong dissenting opinion highlighting just how radical that answer is.
The majority opinion is something of a departure from previous cases. The judges admit that Utah voters cannot be accused of hatred or animus just because they wanted to retain the child-centered understanding of marriage.
The crux of their opinion is the novel claim that the Constitution has, since 1868, contained an unwritten “fundamental right” to same-sex marriage. They try to disguise the radicalness of that claim by saying that they are only applying the right to marry that has been previously recognized by the Supreme Court. That’s an implausible claim given that no state had redefined marriage to include same-sex couples until 2004, long after the court’s latest right-to-marry case.
To reach the result the 10th Circuit judges did in this case requires first redefining marriage to mean something it has never meant before – the right to choose one’s life partner of either sex. Only after marriage is understood in that way (in contrast to the virtually universal understanding of marriage as the union of husband and wife that prevailed just over a decade ago) can it make any sense to say that there is a right to marriage that includes same-sex relationships.
A major problem with that approach is that the U.S. Supreme Court has said that if a new right is to be recognized by the federal courts, it must be identified as precisely as possible and must be implicit in the history and tradition of the nation. The “right” the 10th Circuit majority has announced, precisely identified, is a right to same-sex marriage. Why? Because when the Supreme Court recognized a right to marry, the only kind of legal marriage in the United States was the union of husband and wife. To recognize the new right to same-sex marriage, the judge needed to show that this “right” is part of the nation’s history and traditions. That is an insurmountable obstacle for an innovation introduced a mere decade ago by the Massachusetts Supreme Judicial Court.
The court also rejects the state’s reasonable concerns about what will happen if the state is forced to abandon the ideal that children should be raised by their own married mother and father whenever possible, or another married mother and father when that’s not possible. It does so only by relying on its own unsupported assumptions that an official government message that men and women, mothers and fathers, are interchangeable and that neither is essential to child well-being will have no effect. Our experience with nearly 40 years of government endorsement of the idea that marriage is binding only until one party is dissatisfied should cause us to be very suspicious of that claim.
The dissenting opinion in the case is very important. Judge Paul Kelly notes: “The starting point for a claim that same-gender marriage is required by the Constitution must be the Constitution.” He points out what should be obvious to the most casual observer, “The Constitution is silent on the regulation of marriage; accordingly, that power is reserved to the States, albeit consistent with federal constitutional guarantees.” Since all right-to-marry cases have involved opposite-sex couples, what the majority is arguing for is a new, judicially created, right.
This is problematic for a number of reasons. “If the States are the laboratories of democracy, requiring every state to recognize same-gender unions – contrary to the views of its electorate and representatives – turns the notion of a limited national government on its head.” Judge Kelly warns: “[W]e should be reluctant to announce a fundamental right by implication. Not only is that beyond our power, it is completely arbitrary and impractical; as in this case, a state should be allowed to adopt change if desired and implement it.” He concludes: “We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.”
What does this decision mean for the future? A media talking point has been that same-sex marriage is on a roll, having received the support of a couple dozen federal judges in the last year. Thus, the argument goes, a national mandate for redefinition is inevitable. The problem with that line of reasoning is that all of the court decisions to this point rest on an interpretation of implications of last year’s Supreme Court’s decision on the Defense of Marriage Act (the decision itself said nothing about whether states had to redefine marriage). If the judges took the wrong cues from the Supreme Court’s silence, every one of the decisions mandating marriage will be meaningless.
There is a definite bright side in the timing of the 10th Circuit opinion. This is the first federal appeals court decision striking down a state marriage law. The only other circuit opinion on the issue, from the 8th Circuit in 2006, held that states were free to retain the understanding of marriage as the union of a husband and wife. This case creates a conflict among the federal courts on the matter, so the Supreme Court should feel obligated to resolve that conflict and correct the misinterpretation of its June 2013 decision.
The Utah case is a good vehicle for doing that. Unlike other states where government officials are refusing to defend marriage, Utah has provided a robust defense of its laws. Utah is also unique among states in that its people are more likely, on average, to live out their commitment to the ideal that children deserve a mother and father.
So, the 10th Circuit decision is disappointing, but not unexpected, and it allows the legal process to move forward to the U.S. Supreme Court. The increased attention to this matter that will come from this next stage will provide more opportunities to stand for the truth about marriage and family. These opportunities are not to be missed.
William C. Duncan is director of Sutherland Institute’s Center for Family and Society and also serves as director for the Marriage Law Foundation.