Understanding The Sixth Circuit Ruling On Marriage, Part 2

This is family policy matter program is produced by the North Carolina family policy Council of profamily research and education organization dedicated to strengthening and preserving the family, and often the studio hears John Rushton, president of the North Carolina family policy Council, thank you for joining us for family policy matters. It is our pleasure to have Peter Sprague back with us on the program this week.

Peter is senior fellow for policy studies at family research Council in Washington DC to be continuing the discussion that we began last week with Peter about a recent ruling by the US Court of Appeals for the Sixth Circuit that upheld the marriage protection laws of four states last week we talked about some of the key findings in the Sixth Circuit's decision and we will be picking back up with that discussion this week as we consider what impact the Sixth Circuit's ruling could have on the national marriage battle Peter, welcome back to family policy matters. It's great to have you with us again, thank you for having me Peter in its opinion, the Sixth Circuit touched on some of the ways that marriage benefit society and also watch states that choose to maintain marriage is the union of one man and one woman should be able to do so. But the court focused a great deal of its attention on legal arguments and the policymaking and judicial process that have brought us to where we are now and and frankly some of the interpretations.

Some of the actions the courts have taken that the Sixth Circuit opinion seems to suggest were just flat-out wrong and there was really of a methodical process by which the majority opinion went through a lot of those different issues.

I know that some of the folks that I have spoken about.

Since the opinion came out have felt that that was really a shortcoming of the court's opinion that it focused much more on the legal aspects and less so on the benefits of marriage, or upholding arguments in favor of the benefits of marriage as between a man and a woman to society. What is your response to that what you think about that. Well I think that they took a decision with very good because I don't have the exact quote before me, but it was one that that you know made me smile a little bit.

He said there are many different ways to approach this issue but there was one that is not open to us as judges and that is for us to simply take a poll of this panel to determine what our opinion is about the merits of same-sex marriage is a policy. In other words, judges are not supposed to be giving their opinion on policy questions. They are supposed to be giving their opinion on legal and constitutional questions which is a quite different matter.

And so I think the date they pointed out that some of the other courts that ruled in favor of same-sex marriage kind of gone on and on about you know the children who are raised by same-sex couples, for example, in out how they would benefit or they might benefit from the same-sex couple is raising them being permitted to marry and having some of the legal protections that come from that and so forth and the problem with that is, those are all perfectly reasonable arguments to bring up in a debate over same-sex marriage in a legislature, but they are not decisive in a note court setting because the court only issue with does the Constitution that we have now the Constitution of the United States as it is now written contained within it, and right up to marry a person of the same-sex and the answer to that question is clearly no and therefore all those other issues are to be debated by the legislature or by the people when they vote on a referendum. Now some conservative critics who met who may wish that the six circuit had gone even further in sort of listing some of the benefits of man woman marriage need to understand that the same applies to them.

I think that that that it's really not the place of the court to make a comprehensive argument in favor of why defining marriage as the union of a man and a woman is a superior public policy. Their job is to just look at the law and in this case, the question is does the Constitution forbids states to define marriage as the union of a man and a woman. They said the answer that it clearly no, the question of whether state ought to define it that way is something to be decided by the democratic process.

Are there any other noteworthy findings that jumped out achieved that were significant that she felt would be particularly persuasive as this opinion may make its way up to the Supreme Court. One thing that was very interesting in the opinion which had not been anywhere else, with most of the opinion the bulk of the opinion represented what we might call a conservative judicial philosophy of of judicial restraint. You know the date of the courts are not to go beyond what the law actually says in and out. He looked at existing precedent. They looked at the actual text of the 14th amendment that looked at how it would've been interpreted at the time that it was adopted. Look at how some of these marriage president of the Supreme Court would've been understood at the time that they were that they were handed down and none of them suggesting that they included a right same-sex marriage but then at the end of the opinion, Judge Sutton, who wrote the majority opinion basically said even under the more liberal theories of jurisprudence or you don't get to a right to same-sex marriage there.

There are some people who believed it, you know, refer to a living Constitution of the Constitution is a living document and that that even though the words in it don't change that our interpretation With that have to change as you know, as society changes and we gain greater enlightenment and understanding, and so forth. Judge Sutton said that even if you believe in this theory of the living Constitution. It's contingent on an evolution in the People's standard, not in judges standards and it is quite clear that our country is still very sharply divided on this question of same-sex marriage, there is no emerging consensus that among the public that there is a fundamental right to marry a person of the same sex, and therefore, even under this living Constitution theory, there is not the proper foundation for declaring this new right so that that I found was one of the more intriguing parts of the of the opinion a little bit unique compared to even other pro-marriage decisions from the same point of just providing a word of encouragement to them. There's been a lot that we seen with respect to marriage across the nation and in North Carolina what one observes of encouragement and advice would you give to our listeners, especially in light of the Sixth Circuit's opinion in this case, and potential likelihood Supreme Court may take this issue up to possibly as soon as the next term thing I would say is that when you hear advocates of same-sex marriage talk about how it's inevitable and and so forth. And that that defenders of one man one woman marriage or on the wrong side of history.

Don't believe it.

That all of these decisions will remember they went to the Supreme Court last year in 2013 with the case challenging California's proposition eight, thinking that that in June 2013 they could get a Roe V Wade of same-sex marriage, declaring you know imposing same-sex marriage is a constitutional right on all 50 states and they didn't get it. They didn't get that that that now that case that the Supreme Court decided not to decide that case they they rejected that on technical grounds and basically didn't issue a decision on the merits there and in everything that's happened so far.

I mean, they thought they were going to get to that point.

This year they thought they were going to have some of these cases accepted in October and and then read beyond on track to get this big Roe V Wade of same-sex marriage decision from the Supreme Court and the court didn't take those cases so everything that's happened has simply said, this debate is going to continue. So far there is nothing that is happened that has said this debate is going and and that that is going to be resolved for the all, the whole nation once and for all.

So we want people to understand this. The debate is ongoing.

Very active and not the outcome is not at all certain.

But the other thing I I want to suggest to your listeners is in terms of their personal lives and the personal conversations don't be afraid it have the courage to share your belief that marriage should be defined as the union of a man and woman. And because there is a concern sociologically about a spiral of silence where if we stop speaking out.

Even though according to polls at that if pollsters ask the question, do you believe that marriage should be defined as the union of a man and woman, a majority of Americans still say yes, but they've been told. Although most Americans now support think that marriage because of the different reported pulp and and they said no it's inevitable support and they made the majority who believed in one man one woman marriage afraid to say that that's what they believe it and and when nobody is saying it then then it becomes more believable that nobody thinks that way anymore and you get the spiral of silence whereby a minority silences the majority and therefore they they win because of the silence of their opponents and we mustn't let that happen.

We must continue to speak out in love about the truth that marriage is the union of a man and woman and that inherent to the nature of the great admonition to our listeners, and one that we have repeated over and over again that we really need to stay engaged in this we need to speak the truth in love, and make sure that the God's truth about marriage.

His first institution is clearly spoken. What you think happens in that case, if you we have a Supreme Court that takes this Sixth Circuit opinion on appeal and they come down on the side of states having the right to define marriage as the wish. What happens in in states like North Carolina where we are under the Fourth Circuit's opinion, the state is issuing marriage licenses to same-sex couples within the Supreme Court comes back after that and says hey we think that the states are to be able to define marriage as they see fit. Well, I know that I know her people like some of the attorneys from alliance defending freedom of said this is why states should not change their laws because some people in the general public might think you know well when this court strikes down a lot.

That means the laws wiped off the books will know the law is still on the books. It's just that the state is enjoined from enforcing it. So you have a law that you're not permitted to enforce well presumably you know if the court were to rule in favor of the state, then those injunctions that are preventing them from enforcing their own law would be listed would be null and void and therefore they could begin enforcing their own laws. Again now the question would be what happens to the same-sex couples who have already married and I think probably they would their marriages would have to continue to be recognized.

That's what happened in California which you know that they had a state Supreme Court decision in May 2008 and they allowed same-sex couples to marry and then they passed proposition eight in November 2008 and they stopped marrying but the one thing that would already married were still recognized as married and and it that you know that's probably the best we can hope for would be that would be an outcome like that will surely get creative, chaotic situation, which is what we were anticipating. Unfortunately, Supreme Court did not take up the Boston case and the other cases were hopeful that we would get a conflicting opinion out of one of the other federal appeals court which has now occurred in Peter. I know that FRC has provided a lot of resources about this work in our listeners go to get more information about the family research Council and the resources that you have available about marriage and a whole host of other issues like the go is to our our website www.rc.org FRC for family research Council and you will find an abundance of resources therefrom from my short talking points for more detailed booklets and pamphlets and so forth. Addressing this issue as well as our legal brief that we have filed friend of the court with that we filed in some these cases making more detailed legal arguments as well. I would encourage you to avail themselves of that information so that they are better equipped when they engage in conversations about marriage and the critically important issues that were replacing daily in our culture.

Unfortunately neurotic time for this week, but I want to thank you so much for being with us again on family policy matters for all your great work defending family values and marriage shot at the family research Council just for your commitment to speaking the truth in love. Thank you very much.

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