In our opinion: As marriage dispute heads toward Supreme Court, judiciary should not invalidate state laws

Published: Wednesday, June 25 2014 5:05 p.m. MDT

Supporters of Utah's same-sex marriage ban gather at the Utah State Capitol Friday, April 11, 2014, in Salt Lake City, to stand up for Supporters of Utah's same-sex marriage ban gather at the Utah State Capitol Friday, April 11, 2014, in Salt Lake City, to stand up for "traditional marriage" a day after a federal appeals court heard arguments about the constitutionality of the law. (Rick Bowmer, Associated Press)

Wednesday’s split decision in favor of same-sex marriage by a panel of the 10th U.S. Circuit Court of Appeals sets up the opportunity for Utah’s traditional man-woman definition of marriage to be tested before the U.S. Supreme Court.

Two of the three judges upheld the lower federal court decision of Dec. 20, 2013, that had required the state to permit same-sex marriages prior to a stay by the U.S. Supreme Court. The appeals court judiciously stayed its decision until the Supreme Court decides whether to review the matter. Assuming the State of Utah seeks high court review, as indicated it will by Attorney General Sean Reyes, this stay precludes a reintroduction of same-sex marriages in Utah until the high court weighs in directly.

We support the reasoning of Judge Paul Kelly, who dissented from the majority opinion. Both the majority and the dissenting opinions thoughtfully consider the question of whether there is a right to same-sex marriage. Yet Kelly, who argues, “we should be reluctant to invalidate state constitutional or legislative enactments,” is more persuasive.

The majority acknowledges the Supreme Court precedent (Baker v. Nelson, from 1972) which holds that the issue of same-sex marriage is not a federal question. But the majority said that decision can be overlooked because of its procedural posture and in light of subsequent Supreme Court decisions. These decisions include the high court’s affirmation of the right of adults to consent to intimate homosexual relationships (in Lawrence v. Texas, 2003), and the federal government’s responsibility to recognize, for purposes of federal law, state-sanctioned same-sex marriages (in Windsor v. U.S., 2013). In striking down a portion of the federal Defense of Marriage Act last year, the Windsor decision has inspired dozens of legal battles over the separate question: Is a state constitutionally required to recognize same-gender marriages?

The majority on the appeals court said that “the right to marry is a fundamental liberty.” It refers back to decisions permitting inter-racial marriage, marriage by a prisoner, and marriage by a “dead-beat dad.” In all those cases, the marriages at issue were marriages between a man and a woman. Yet drawing on the implications of the 2003 and 2013 Supreme Court decisions, the majority leapt to the conclusion that same-sex marriages need to be accorded the same legal recognition as man-woman marriages.

This reasoning is incomplete. It does not acknowledge the way marriage has consistently been understood by law and culture. It does not respect the bounds of federalism. And it arrogates to the judiciary powers that are best left to the democratic institutions of government.

Fortunately, Kelly's dissent puts precedent, procedure and principle into proper context: An appeals court is not free to disregard a Supreme Court decision directly addressing an issue. “To the extent there is no right to same-gender marriage emanating from the Fourteenth Amendment, a state should not be compelled to recognize it.”

Kelly also highlighted how the proponents of same-gender marriage have misappropriated the goodwill associated with the word “marriage” in seeking to obtain a right not found in the Constitution. “Indeed, this case is better understood as an effort to extend marriage to persons of the same gender by redefining marriage."

The opponents of traditional marriage, Kelly wrote, “contend that freedom to marry is self-defining and without reference to those who assert it or have been excluded from it. Of course, the difficulty with this is that marriage does not exist in a vacuum; it is a public institution, and states have the right to regulate it. That right necessarily encompasses the right to limit marriage and decline to recognize marriages which would be prohibited.” He opposed the judicial effort to require states to change their laws on marriage and make it into what he called a “freestanding right” for consenting adults.

Kelly continued: “recognition of fundamental rights requires a right deeply rooted in United States history and tradition, and a careful and precise definition of the right at issue.” There is no such history or tradition supporting a redefinition of marriage, and therefore, he said, “we should be reluctant to announce a fundamental right by implication.”

Kelly’s final sentence is worth repeating as this case goes to the next level of review: “We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.”

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