Understanding The Sixth Circuit Ruling On Marriage , Part 1

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 this week. Profamily policy matters. It is our pleasure to have Rick with us. Senior fellow for policy studies at the family research Council or FRC in Washington DC. His research and writing focuses on the issues of marriage and family as well as human sexuality and religion in public life. Peter is the author of the book outrage.

How gay activists and liberal judges are trashing democracy to redefine marriage. Peter is with us today on the show to discuss a recent ruling by the US Court of Appeals for the Sixth Circuit that upheld as constitutional.

The marriage laws of four states within its jurisdiction will be talking with Peter about the Sixth Circuit ruling and what it means, with respect to the national battle over marriage. Thanks so much for joining us again on family policy matters. Thank you for having me.

Well, it's our pleasure. Now, profamily advocates are celebrating the November 6 ruling by the Sixth Circuit Court of Appeals that upheld the marriage laws of four states tell us generally about this opinion and to which states it applies while this was a very significant opinion because as your listeners may know there have been a raft of court decisions from federal judges across the country since the 2013 decision of the Supreme Court striking down part of the federal Defense of marriage act and these decisions relying on that as president to strike down state definitions of marriage as the union of a man and a woman now. Several of these have already been appealed to the Circuit Court level and all of the Circuit Court had also struck down the state. Definitions of marriage until this ruling from the Sixth Circuit in which they upheld the definitions of marriage in Michigan, Ohio, Kentucky and Tennessee. That is great news and we were very excited that this opinion was put forth by the court. Now that the Sixth Circuit is the first federal appeals court in about a year. As you mentioned to rule in favor. Marriage is the union of one man and one woman, and I know that you you said that you think this is significant how significant do you think this is and do you expect that this case will make its way to the Supreme Court that the most significant part about it. In addition to the quality of the decision itself, which I think was very valuable, but everyone was surprised. Most observers I think on both sides of the debate over marriage were surprised in October when the US Supreme Court simply declined to hear any of the appeals from the other cases the other circuits that had already reach them that they did not issue ruling one where another except when I can hear these cases and when that happens then that the Circuit Court ruling takes effect, which is led to marriage licenses being issued to same-sex couples in a number of states across the country, but there were some sense that that they might be reluctant to take up the issue and didn't feel a need to take up the issue as long as the lower courts were all basically moving in the same direction now II had criticized criticize that the decision on the part of the Supreme Court. It is cowardly because they're basically passing the buck downwards and allowing the lower courts to do their dirty work for them. Obviously this is an important constitutional issue.

We should hear from the Supreme Court on it. But now they have a conflict and this is sort of considered the classic golden ticket to the Supreme Court. If there's a question about whether your issue will come before the Supreme Court. The most likely way of ensuring that it will, is to have two or more circuits around the country that are divided in the answer they give to the core constitutional question and that's what we have now with the sixth circuit ruling this month. We we now have a classic circuit split courts in different parts of the country is saying that the Constitution of the United States requires completely different thing.

And the only way to resolve that is through a decision of the US Supreme Court. So we we certainly think this makes that much more likely. Of course, as I said the caution nobody knows what the court is going to do that though I can't say that with 100% certain but I think most observers agree that it greatly increases the likelihood we will see a Supreme Court when we were certainly dismayed when the Supreme Court failed to take up those cases, especially the Boston case out of Virginia which was an opinion handed down by the Fourth Circuit Court of Appeals in North Carolina falls under the jurisdiction of the Fourth Circuit and so that opinion has gone into effect.

As you mentioned, and marriage licenses have been issued to same-sex couples in North Carolina so we are absolutely one of the states that have been significantly impacted by the Supreme Court's failure to take up those cases. Now let's talk more specifically about the Sixth Circuit's opinion to the majority say about the state marriage laws and while they are constitutional in a different response than what we've seen from other federal appeals court will be there. A number of ways in which the argument for a constitutional right to same-sex marriage has been Preston and one of the things actually. They pointed out was that the lower court, even though there been this many lower court decisions in favor of same-sex marriage. They've not been unanimous. Even though courts have not been unanimous in the reasoning behind. Basically there are two portions of the 14th amendment to which the which was adopted after the Civil War to which the advocates of same-sex marriage have appealed what is the due process clause and one is the equal protection clause now courts have ruled that the due process clause provides not only procedural protections but substantive protections of certain liberties, even if they're not actually enumerated in the Constitution and one of those rights that has been recognized as fundamental right, and there have been prior Supreme Court decisions which of talk about a fundamental right to marry and which have struck down certain restrictions on the ability of certain people to marry the best known is that they struck down the bans on interracial marriage. They also had Supreme Court decisions that would struck down a state law that prevented primarily men without outstanding child support obligations from remarrying or marrying and that was struck down, and one that actually put prevented incarcerated prisoners from marrying. And even that was struck down by the Supreme Court, all under this fundamental right to marry. Well, the advocate of same-sex marriage are claiming that the fundamental right to marry includes the right to marry the person of your choice, even if that person is of the same sex.

Not all the cases involved opposite sex couples so that Supreme Court is actually not spoken to that, but what the Supreme Court has done and what the Sixth Circuit recognized is in a case back in 1997 the Supreme Court said no that there was no such right, and that when they are looking at identifying new fundamental rights under the due process clause.

There were certain criteria. First of all, the right had to be clearly and narrowly defined and it had to be one that was objectively, deeply rooted in the country's history and tradition.

Okay so in this case, the clear definition of the right that is being sought is the right to marry a person of the same sex and that is obviously not something that is deeply rooted in the history and traditions of our country. So as the. The circuit correctly pointed out that that was not a a route which would supply a like to same-sex marriage and date. They denied the argument in other courts that well this one mental right to marry is implicit within that is the right to marry anyone you want, and that of course is the advocates of same-sex marriage don't want to deal with the implications of that because there are other restrictions on the ability to marry the person of your choice. No one is allowed to marry a child. No one is allowed to marry a close blood relatives. No one's allowed to marry a person is already married and all of those restrictions would be in jeopardy if we declared an absolute right to marry the person of your choice.

So that's one big area of the due process clause of the fundamental rights argument. The second area is equal protection of the 14th amendment says states.

Let's but give to all other citizens. The equal protection of the law. Well, that doesn't mean that everybody has to be treated equally and everything because that would be possible, but it does mean that people who are similarly situated have to be treated equally because all laws will make classifications of one type or another.

They'll go make a distinction between run one group that gets a particular benefit another group that doesn't get that benefit now. One argument that I've made is the advocate of same-sex marriage argue that law defining marriage as a union of a man and a woman classify on the basis of sexual orientation. I've actually argued that that's not even true because marriage license applications. Do not ask you your sexual orientation and homosexual people are. It is free to marry as heterosexual people are, but they have to abide by the same rules as anybody else which is the impact marry a person of the opposite sex.

Now I know that sounds absurd to people but but that's on the face of it, that's true. There's but even if you accept that these laws classify on the basis of sexual orientation. Then there are different standards of review under equal protection law what's called strict scrutiny, which is for certain categories that are generally those are explicitly mentioned in the Constitution, like race, it's very difficult for a state to justify a law which classifies people on the basis of race. Then there's rational basis review.

That's the most lenient which says the state only has to have any conceivable rational basis for this classification and it will be upheld. And then there's an intermediate one called heightened scrutiny which applies to fax in a couple other categories which requires a little bit higher bar for the states to meet but not as high as the strict scrutiny self. There's no precedent which is ever said that sexual orientation classification should be subjected to heightened scrutiny or strict scrutiny, but some of the lower courts have said that they should. They've said that all well it's implied in the Windsor decision that Dharma decision last year and so forth.

Wealthy Sixth Circuit said no you know there's no precedent for this. No precedent from the Supreme Court and explicit precedent against that within the Sixth Circuit because each circuit is bound by its own precedent, even in cases where the Supreme Court has not ruled on an issue and and so they are analyzing under the rational basis test.

They said the fact that opposite sex couples are capable of appropriate of natural procreation, and same-sex couples are not was in itself a reason enough to provide a provided enough of a rational basis to uphold these laws and they also said that it was reasonable for states to want to function as laboratories of democracy in terms of allowing the democratic process to respond to the experiment of same-sex marriage. If you will. In other states and decide whether what they want to follow that example or not. So one of the key argument within the case. Besides the specific issues was the question of who should decide in our governmental system issue like this and they came down firmly on the side of saying this is an issue that the people should decide. Through the democratic process. Unfortunately, no time for this week, Peter and FRC provided a lot of resources about this work in our listeners go to get more information about family research Council and the resources that you have available about marriage and a whole host of other issues will leave this place to 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 briefs 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 in the critically important issues that were facing daily in our culture, thank you so much for being witness on family policy matters for all your great work defending family values and marriage at the family research Council and just for your commitment to speaking the truth in love. Thank you very much's family policy matters is information and analysis, future of the North Carolina family policy Council known as weekly discussion on policy issues affecting the family you have questions or comments, please contact 91 907-0800 visit our website and see family. One