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 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.
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.