To Preserve Marriage and Democracy

by The Editors

The great deal of lawless judicial opinion written by federal judges about the issue of same-sex marriage now has an important counterweight: The ruling of the Sixth Circuit Court of Appeals, which decided on Thursday that nothing in the Constitution compels state governments to recognize same-sex marriages. Thus, marriage laws in the states under the Sixth Circuit, democratically passed in Kentucky, Michigan, Ohio, and Tennessee, can stand.

This is the first time that a panel of circuit judges, the top level of the judiciary below the Supreme Court, has ruled that states can retain the traditional view of marriage. In October the Supreme Court chose not to review a number of circuit-court decisions that have struck down such laws in other states. It is likely that its decision came in part because circuit courts had not disagreed on the matter. Now they have, and it’s hard to see how the Supreme Court can ignore the issue.

The nation’s highest court should affirm the right of the people in every state to decide democratically whether or not to define marriage as the union of a man and a woman. As the author of the majority opinion in this case, Judge Jeffrey Sutton, explained, states have always been in charge of defining marriage — not that this has been an open question at any other point in the history of Western civilization. Indeed, advocates of same-sex marriage made a great fuss about this very point a few years ago, as part of their argument against a constitutional amendment securing the old definition.

The Sixth Circuit is not the only federal judicial authority that has gotten this issue right. A district judge in Louisiana, for instance, ruled that the state can refuse to recognize same-sex marriages, as the policy was not motivated by irrational animus. Laws restricting marriage to one man and one woman, the Sixth Circuit argued, pass a rational-basis test, both because the traditional definition of marriage serves key state interests and because states ought to be allowed to see how redefining marriage goes elsewhere.

That, presumably, is what the voters and elected politicians of states that don’t recognize gay marriage thought. It also happens to be what the Supreme Court used to think, and, as Judge Sutton noted, it has not reversed itself: The Sixth Circuit decision relied in part on Supreme Court precedent holding that the traditional definition of marriage is perfectly compatible with the Constitution.

A number of liberal judges who have overturned state marriage laws over the past year have relied on the Supreme Court’s decision in U.S. v. Windsor, which struck down portions of the federal Defense of Marriage Act, to argue that the Constitution does not permit states to use the traditional definition of marriage. The Supreme Court had not said any such thing, yet many judges took Windsor as a green light to constitutionalize same-sex marriage using any legal theory at hand. They did not all pick the same one; they united only on the rather breathtaking claim that from the nation’s founding until a decade or so ago, every state had a definition of marriage that violates the Constitution.

Unconstitutional marriage laws are possible: Same-sex-marriage advocates thoughtlessly cite the striking down of interracial marriage bans in 1967’s Loving v. Virginia as evidence that marriage laws must not discriminate. But laws against interracial marriage were an innovation intended to perpetuate white supremacy; the traditional definition of marriage does not discriminate against either sex and serves a legitimate, indeed crucial, purpose.

If states wish to change their definition of marriage, they may consider the question democratically, as Sutton urges. Circuit judge Martha Daughtrey, who dissented from the Sixth Circuit panel’s decision, called Sutton’s opinion an “introductory lecture in political philosophy.” The course of same-sex-marriage debates in the courts suggests that’s precisely what many of our judges and politicians need.