The key question in the debate over the definition of marriage is about who shall decide. Will it be the people, through democratic processes? Or will it be a federal district court judge asserting a constitutional right to a practice that remains deeply divisive within our nation?
Those who believe that same-sex marriage will be mandatorily imposed across all the United States are misreading key legal precedents and the careful approach to constitutional jurisprudence by appellate courts and the U.S. Supreme Court.
The debate over the legality of requiring same-sex marriage has not ended: it’s only just begun.
Last month, a three-judge panel of the 10th Circuit Court of Appeals was the first to hear arguments in the cases arising in Utah and in Oklahoma. A decision by the panel is pending.
On Tuesday, a panel of the 4th Circuit Court of Appeals, in Richmond, will consider a similar case in Virginia. As in Utah and Oklahoma, a federal judge struck down a Virginia vote that marriage remain between a man and a woman. Other cases are pending in the 5th Circuit (Texas), the 6th Circuit (Kentucky, Michigan, Ohio and Tennessee), and the 9th Circuit (Nevada).
The district court judges who have struck down these laws point to the Supreme Court’s ruling in June 2013 that voided the federal Defense of Marriage Act.
But as we noted in December, following the same-sex marriage decision in Utah by Judge Robert Shelby, “The Windsor case, however, pointedly did not impact state laws defining marriage. Indeed, in the Windsor case, Justice Anthony Kennedy, writing for the court, reasoned that ‘the tradition of recognizing and accepting state definitions of marriage’ was a central plank in the Supreme Court’s decision that the federal government could not, through the Defense of Marriage Act, undercut the state of New York’s definition of marriage.”
It is almost certain that one of the pending appellate court decisions regarding the right of a state to define marriage will again return to the Supreme Court. And four of the current nine justices are almost certain to uphold laws, such of those of Utah or Oklahoma or Virginia, that define marriage in the traditional manner.
The key vote, many legal observers believe, lies with Kennedy himself. In an April 22 decision on an affirmative action case, Schuette v. BAHM, Kennedy spoke at great length about the need to leave controversial matters in the hands of the electorate. A decade ago, the high court ruled that affirmative action programs by state entities were permissible; now it said that they were not required.
“Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate , that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process,” Kennedy wrote for the court.
He continued, speaking powerfully about the importance of democracy: “The idea of a democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of this Nation and its people.”