Background

Read an excerpt from an analysis of the 6th U.S. Circuit Court of Appeals decision by Albert Mohler:

In his opinion, Judge Sutton wrote:

“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 within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee.”

He went on to say,

“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?”

By the time you read very far into the opinion it is clear that this panel has decided that the 14th amendment to the United States Constitution does indeed not prohibit a state from defining marriage as the relationship, as exclusively the relationship, between a man and a woman.

In his very careful argument Judge Sutton goes back to the year 1972 when the U.S. Supreme Court refused to take a same-sex marriage case. In that particular case in 1972 the Supreme Court of the United States was asked to take a case in which the Supreme Court of the state of Minnesota had ruled that there was no fundamental, there was no constitutional right, for a same-sex couple to be married. When the court decided not to take that case back in 1972, it did what it does not always do – it explained why it was not taking the case; that was back in 1972.

Back in that statement the court said that the claim that was made by the same-sex couple did not raise “a substantial federal question.” In other words, back in 1972 the Supreme Court of the United States, faced with the very same kind of case that the Six Circuit was just now considering, said that the issues involved in that case did not raise “a substantial federal question” –in other words it was not the business of the federal courts.

But some will say the times have changed and Judge Sutton addresses that issue squarely. He writes:

“But that was then; this is now. And now, claimants insist, must account for United States v. Windsor.” (That was the 2013 case we note in which the Supreme Court of the United States struck down the Defense of Marriage Act.) Judge Sutton says, “Yet Windsor does not answer today’s question. The decision never mentions Baker, much less overrules it. And the outcomes of the cases do not clash.”

Judge Sutton also took seriously the claim that was made by the plaintiffs in this case that there were so-called “doctrinal developments in the law” that would suggest that the six circuit would have to come to a similar conclusion as the Supreme Court did in the Windsor case. Judge Sutton said there were no such doctrinal developments that would necessitate such a pattern.

As Judge Sutton said in the beginning of his opinion, the key legal question, the central constitutional question before his court, was whether or not the 14th amendment to the United States Constitution would render restrictions on same-sex marriage to be unconstitutional and thus unlawful. An answer to that, he points out, that the key issue here is how did the framers of that language in the Constitution actually mean for it to be interpreted. As he said, any faithful kind of interpreter of the document has to ask that question. And if you do asked the question, that is what did the framers of this language mean, as he writes:

“Nobody in this case, however, argues that the people who adopted the 14th Amendment understood it to require the states to change the definition of marriage.”

Furthermore, he points out that the Supreme Court of United States has been employing this very form of logic. He points to the decision handed down last term in the case town of Greece v. Galloway in which the Supreme Court majority ruled that the state of Greece, New York had the right to begin its town Council meetings with prayer because it is not constitutionally or logically sane to suggest that the framers of the U.S. Constitution – in this case its First Amendment – had in mind eliminating that very practice when they followed it themselves; that’s the kind of reasonable common sense that you’d expect not only a lawyer, not only a judge, but any intelligent person to follow.

And speaking of judicial humility, here’s one of the most important statements written by a federal judge I have seen in many, many years. Judge Sutton writes and I quote,

“A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the states.”

Mr. Mohler’s full analysis can be found at: albertmohler.com/?p=33168 .