Thursday, November 6, 2014

The Sixth Circuit Court and sanity

The Sixth Circuit Court of Appeals, located in Cincinnati, ruled today to uphold the constitutional amendments and statutes passed in four states (Michigan, Ohio, Kentucky and Tennessee) that legally uphold marriage. It seems now the Supreme Court will be forced to do what it has assiduously avoided doing for the past several years, make a ruling on this issue.

The way I see it, there are two ways to approach this question. The first is from what, for the sake of brevity, I will call the moral viewpoint. The second is from the constitutional/legal viewpoint. Ideally the two overlap, especially from a Christian point-of-view, or any point-of-view that arises from a natural rights perspective. What has become so troubling and divisive is that the moral and the constitutional/legal have, over time, drifted further and further apart as our nation has become more and more secularized. It seems to me that the rate of divergence has increased exponentially during President Obama's presidency.

According to the Sixth Circuit Court ruling, the major concern of the two judge majority (it is a three judge panel) in the ruling was on constitutional/legal grounds: "the question whether to move the nation toward same-sex marriage in every state is for the people or the states, and not for judges applying the national Constitution." But this is only mentioned after establishing the pedigree of marriage, which, it is noted, "has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world."

The majority opinion went on to note:
Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?
This reminds me of a question, posed by Justice Scalia to Ted Olson during oral arguments in Windsor v. United States, which challenged the constitutionality of the congressionally-enacted Defense of Marriage Act (one of those bills that President Obama would not defend), When did it become unconstitutional for states to hold that marriage is only between one man and one woman? Implied in Justice Scalia's question is the historical fact that the prohibition of same-sex marriages, polygamous marriages, marriages within defined degrees of consanguinity, etc., have not been understood as unconstitutional for most of the history of the republic.

While perhaps not implied in Scalia's question, but something that is certainly relevant, is that among the most compelling reasons for such an understanding of marriage one will not find rank prejudice. This is not to say such prejudice did not and does not now exist and sometimes manifests itself. If this were the case, then we'd be wise to simply broaden what marriage means. In other words, those of us who hold to traditional marriage are not simply big, biased meanies, as many erroneously and uncharitably suppose. One way of attempting to demonstrate this erroneous supposition is by comparing so-called same-sex marriage with interracial marriage. In reality, this is a classic comparing of apples to oranges. Same-sex marriage can in no way be equated to interracial marriage (see "On marriage: refuting a stupid argument"). The best reasons show us that such a broadening is simply not possible and is certainly not without serious consequences for everyone.

It was Chesterton who wrote, "Tradition means giving a vote to the most obscure of all classes, our ancestors. It is the democracy of the dead called tradition."

In any case, I was encouraged to read the Sixth Circuit majority opinion because it shows that some judges understand that our country was not constituted to be ruled by black-robed oligarchs. In these matters, especially in light of the minority opinion, which invoked "an independent judiciary" to justify legislating from the bench, I am reminded, yet again, of the First Things, "The End of Democracy? The Judicial Usurpation of Politics," published back in 1996. Fr Neuhaus, who started and oversaw this journal, was lambasted (literally) left and right for publishing it. I imagine many who took issue with it then see things more clearly now.

I believe that there is a discernible difference between adjudicating and legislating. I also believe that the idea that matters of huge importance to our nation are to be exclusively decided by judges would be utterly repugnant to our nation's founders. Hence, I find it heartening that Judge Sutton, author of the Sixth Circuit's majority opinion, and hopefully other federal judges, understand this point.

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