This week's 6th Circuit Court decision reversing district court rulings that had struck down gay marriage bans in Michigan, Ohio, Kentucky and Tennessee is the first major loss for post-DOMA marriage equality in an appeals court.
The decision is remarkable in its use of throwback arguments already rejected by all other Circuit Courts that have weighed in since DOMA took a slap down at the Supreme Court. It's almost as if the 6th Circuit conservative judges are daring SCOTUS to finally take a stand and decimate the feeble arguments against equality and civil rights.
Jump below the fold for an interesting discussion about the court decision and why the biological evolution of gays and lesbians is the basis for the our contemporary public evolution toward equal rights.
Sixth Circuit Judge Jeffrey Sutton’s majority decision declares that the U.S. Supreme Court's decision in Oct 2014 to turn away appeals from states seeking to prohibit same-sex marriage does not “end the debate” on the constitutionality of gay marriage bans. Sutton wrote, "A decision not to decide is a decision not to decide." So the 6th Circuit is tossing it back into SCOTUS’ lap.
Here are their major arguments:
The democratic process should decide this issue.
What a lame excuse for judicial inaction. The lack of gay and lesbian civil rights is a classic “tyranny of the majority” oppression. The US Constitution and our courts are the perfect solution. I hope the 6th Circuit Court judges know that and are only trying to avoid being labeled “activist judges.” See Judge Martha Craig Daughtrey’s excellent dissent for her opinion of the purpose of our courts in preventing oppression of minorities.
States’ Rights
From Sutton’s decision:
“States should be able retain authority to define marriage as between a man and woman to ensure the incentive to stay together for their children remains. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring."
How well did that argument work for the states that still blocked interracial marriage before the Supreme Court struck down those bans with
Loving v. Virginia in the 1967 landmark marriage decision? With the stroke of a pen, SCOTUS destroyed all those bigoted state marriage laws. Now they have the opportunity to electronically decimate all the bigoted anti-gay marriage laws as well.
The other circuit courts have already dismissed the States’ rights argument. Judge Carlos Lucero wrote in the majority opinion for its June 2014 ruling that struck down Utah's gay marriage ban, "We may not deny them relief based on a mere preference that their arguments be settled elsewhere." The 10th Circuit also called the notion that states allowing gays to wed could somehow undermine traditional marriage as "wholly illogical." But the 6th Circuit jumped right back in with this illogical thinking:
1) Heterosexual sex can result in offspring.
2) Civil marriage allows heterosexual couples who are both biological parents of the same children to have a state sanctioned marriage contract.
3) Heterosexuals who cannot have children are allowed to also marry. This includes elderly heterosexuals and those who can’t reproduce for any other physical or medical reason. No matter, they still get to marry.
4) Heterosexuals who chose not to have children can marry.
5) Heterosexuals who have children can marry someone who is not biologically related to their children, as long as the other person is a different gender. (Divorce and remarrying is rampant throughout society today, but what the heck.)
6) Therefore, it makes sense to keep the gays out. If gays and lesbians are allowed to get married, someone in one of the above categories might choose not to utilize the now tainted institution.
Precedent, and why SCOTUS has to settle this.
Last year’s Windsor case did not implicitly or explicitly void state marriage laws. Therefore, the 6th Circuit is bound by precedent established with a one-line order issued by the Supreme Court in Baker v. Nelson (1972), which holds that a gay couple’s challenge to a state marriage law did not raise “a substantial federal question.”
Well maybe civil rights for gays and lesbians didn’t seem important in 1972, but it certainly is a substantial federal question now! Are we expected to just lose our rights whenever we move or even travel through states that refuse to accept our legal marriages? If you have to go to the hospital, don’t do it in a state that refuses to recognize your same-sex marital partner or they might not be able to visit you! And just imagine the tax nightmare if you worked in two states and can file jointly in one state but not in another. I won’t go through the other thousand or so problems you can encounter by moving to an anti-gay marriage state, but suffice it to say that your children will also lose out when your marriage is invalidated by stepping over a state line.
Just as it was with biracial marriage before the 1967 Loving v. Virginia decision, Americans should be free to travel or live in any state without concern for loss of civil rights. It’s time to update Baker and establish marriage equality as the law of the land. Here’s hoping that the 6th Circuit included this precedent in order to specifically eliminate it from future discussions once SCOTUS weighs in based on the disparity of civil rights across multiple states.
Speaking of biracial marriage, Judge Sutton’s opinion erroneously declares that “From the founding of the Republic to 2003, every state defined marriage as a relationship between a man and a woman…,” and “the Fourteenth Amendment permits, though it does not require, states to define marriage in that way.” Sorry judge, but from the founding of the Republic until biracial marriage bans were struck down in 1967, many states defined marriage as a relationship between two people of the same race. To be honest, these bans existed in spite of the Fourteenth Amendment’s guarantee of equality. But that’s another story.
Rational basis review
This huge section of Judge Sutton’s decision is riddled with arguments ripe for decimation by SCOTUS, or any of us who care to publish them so our good SC justices and their clerks can cut and paste! Have at it in the comments. As an eternal optimist, I have to believe that Sutton is a good guy who threw in every anti-gay rights argument he could think of so they could be repudiated once and for all. I’m a cup half full kind of person…
Read this section, it’s full of fun stuff like how marriage is based on “nature’s law.” (That must be why polygamy was legal for so long! Everyone knows many males are naturally driven to breed with multiple females, right? Oops, that’s not what the judge meant.) Which takes us to the next silly argument:
Polygamy & the dreaded Slippery Slope
The 6th Circuit ruling suggests that allowing gays and lesbian couples to marry could open the door for others such as polygamists to claim their unions also constitute legal marriage. A quick perusal of American history will tell you that polygamists certainly didn’t need gay marriage to come up with that idea. (All they needed was their own biological imperative and a religious structure to convince women that structure works fine and dandy for them as well as the lucky polygamist husband.) Nor does acceptance of two-person same-sex marriages bolster the cause of polygamy today. The key piece here is that gay marriage is still just two people. Duh.
Sutton:
"There is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot," it says. "If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage."
That’s like saying if you normally ride a bike but decide to go out and buy a car, you’ll have to start putting gas in your bike. Just because. The issue of polygamy is
not related to same-sex marriage. Polygamists and polyamorists may want to push for a different type of marriage expansion that includes their relationships, but the legality of same-sex marriage will really not help their cause.
Besides, the 10th Circuit already rejected the "slippery slope" argument that claims same-sex marriage would lead to acceptance for polygamy. "Unlike polygamous or incestuous marriages, the Supreme Court has explicitly extended constitutional protection to intimate same-sex relationships," the ruling said. That’s right, you can’t put us in jail anymore for being gay, but you can still arrest someone for incest.
The Purpose of Marriage
The 6th Circuit validates the claim that state limits on who can get married are based in the valid government interest in facilitating family units based on biological parents of children. Hmm, that must be why infertile and elderly couples are prohibited from marrying, and state laws prevent parents from divorcing and remarrying. Not!
As other judges and even the SC justices have already noted, animus toward gays and lesbians is the driving force behind these marriage bans. Sutton actually claims that there is no fundamental right to marry, but the fact that some people can marry the person they love and others can’t is the real issue. Since state-sanctioned marriage contracts exist, the Fourteenth Amendment demands they be fairly offered. The decision also claims that gay people are not a “discrete and insular” class. Well perhaps, given that some humans are actually bisexual, but gays and lesbians who want to marry but are denied the right to marry are clearly a discrete class.
Most judges who have considered the constitutionality of marriage bans since DOMA was struck down have rejected procreation-related arguments. It's clear that organizations like NOM that still fight marriage equality are doing nothing to support heterosexual parents. They don’t work to prevent divorce or avert unmarried, teen pregnancies, they don’t help make deadbeat dads pay for their kids, they only try to keep the gays out. Because Bibull. And money, of course. They strip cash from fearful or hateful people, then they can use that money to pad their pockets or buy Republican candidates who will further their financial interests if elected. Hopefully, the next Supreme Court decision on this matter will put an end to their shenanigans.
Evolution of homosexuality
Finally, the good stuff. If the 6th Circuit decision is going to talk about nature, then let’s really get into it. SC justices and clerks, feel free to use this material!
This is the simple evolutionary reality: Homosexuality evolved in thousands of species of animals because it provides a reproductive advantage. This is easy to comprehend, unless you flat out don't believe in evolution. Or you just have so much animosity toward gays that you can't believe they're a natural part of humanity. But we are, and here’s why:
Human sexual behavior is very complex. We’re biologically driven to procreate, but we’re also driven to bond with other humans so we and our offspring will survive in a harsh and dangerous world. Some animals copulate only when the female is in heat. Humans have sex at other times. Non-procreative sex helps us maintain these relationships that further our reproductive fitness. Lesbian sex probably evolved because family stability in tribal settings ensured survival of women's offspring. When the guys were killed out on the hunting trail, women with strong loving, sexual bonds to other women were likely more successful and therefore their offspring had increased survival rates. Gay male sex may have evolved because male-only hunting groups bonded by intimacy and/or power-over behavioral modification could have functioned better and enhanced the survival of the team. Just for a little more evidence, some animals have been shown to have higher reproductive success if the males have homosexual sex when females are not available. The reason could be that their sperm is fresher when they do have heterosexual sex.
The evolutionary basis of homosexuality makes complete sense in the context of a natural world. My hope is that at least one Supreme Court justice reads this section and incorporates it into their marriage equality decision.
The 6th Circuit ruling says that limiting marital unions to opposite sex couples is a view 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.” As if those foot-dragging, anti-gay states are traditional, not Neanderthal. Since this country’s marital traditions included banning biracial marriage, the lame “It’s how we’ve always done it!” arguments no longer pass constitutional muster. But throughout history we seem to have always had homosexuals. Now there’s a biological tradition we can support!
My point here is that 1) Homosexuality is completely natural, 2) The more people understand that gays and lesbians are just another part of humanity, the closer we get to civil equality, and 3) It’s all about the children, evolutionarily speaking. Which takes us to the last flawed argument against same-sex marriage:
O.M.G, what about the children?
First of all, same-sex couples DO have children. But we’ll get to that.
The 6th Circuit ruling says that marriage encourages “stable relationships within which children may flourish… Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children… May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result?"
I’ll say it again, judge: Gay marriage will not make heterosexuals refuse to get married. Imagine a society without marriage? Sir, take a moment and imagine gay and lesbian families without marriage. Because that’s what we’ve been living with our whole lives. If anything, the fight for marriage equality has helped the institution of marriage by raising awareness about how much of a legal contract it really is, and how marriage is so often degraded by those who try it out for a few hours or days.
In spite of some really poor attempts to prove gays and lesbians are bad parents (Mark Regnerus’ junk science was so bad that his employer, the University of Texas, actually posted a warning disavowing it), it turns out that we’re as good or better than heterosexual parents, especially when you take into account all the accidental parents who got pregnant as teens. While the 6th Circuit acknowledged that gay and lesbian couples are equally capable of being in loving, committed relationships and effectively raising children, the decision states that those facts don't mean gay marriage bans violate the constitution.
Other Circuit Courts disagree: The 9th Circuit not only rejected the proposition that children suffer in same-sex households, the judge said it "reflects a crass and callous view of parental love and the parental bond that is not worthy of response." The 10th Circuit scoffed at the attempts to use procreation as a justification for gay marriage bans. Judge Carlos Lucero’s majority opinion points out that adoptive parents and opposite-sex couples who rely on assistance to get pregnant aren't denied the right to marry.
But the 6th Circuit Court reiterates the fact that sex between a man and a woman can potentially result in pregnancy, therefore it’s OK to keep the gays out of marriage. As if banning gays will miraculously make heterosexuals run to marriage just because they’re pregnant.
Well snap! We already have the technology to take the genetic material from an egg and merge it with a second egg's nucleus. That means we can create a human embryo in a petri dish and implant it in one of the women's wombs. Let’s just do it and be done with that silly argument. Both parents would be genetically related to the kids, even without heterosexual sex.
Let’s get back to the children who already exist, which is the strongest reason same-sex couples need marriage equality. Most of the homosexuals raising children today are women who are biologically related to their kids. Those children deserve legal protections that marriage of their parents confers. Same sex couples go to work, pay their taxes, they take their kids to soccer matches. Why shouldn't their families have equal rights?
Progressives have been trying for years to change hearts and minds in the arena of gay and lesbian civil rights. Obama evolved. Why can't the rest of the country? Maybe because so many bigots don’t believe in evolution.
Jump in below with some of your best ideas on how the Supreme Court should rule on (against) the arguments that the 6th Circuit Court has now accepted and promoted.