The number of federal courts striking down state bans on gay marriage is no long unanimous. The Sixth Circuit Court of Appeals (which covers four states, Ohio, Tennessee, Michigan and Kentucky) today issued an opinion upholding the ban on gay marriages in those states. To be precise, the court held that this is an area where courts should not act as a “super legislature.”
The Sixth Circuit addressed one of the major arguments against same-sex marriage bans: that States have no rational basis for enacting such a ban. The majority (it was a 2-1 decision) said that marriage between a man and a woman has been recognized by society for millenia. It was not until 2003 that gay marriage became a possibility in Michigan. Michigan’s voters responded a year later by banning gay marriage. Could Michigan be said to have acted irrationally, the Sixth Circuit asked, in not discarding these thousands of years of societal norm on the basis of one judicial opinion?
The answer the court gave is, no, it cannot. States create an incentive for a man and woman to marry and stay together for the purpose of creating and raising children. This is not irrational; it is merely a recognition of the biological fact that gay couples do not reproduce.
How can any person deny a couple that is in love the right to marry the object of his/her love? That is a question on which the gay marriage issue has turned often. The answer, the Sixth Circuit said, is that love has nothing to do with marriage, at least in the eyes of the state. No state requires two people to certify that they are in love in order to get married. States permit people to marry for any reason. In that regard, the gay marriage argument goes to far because it imposes as the sole qualification for getting married something that was never a factor in the first place.
At the same time, the gay marriage argument does too little. If love is the basis for marriage, why cannot a person marry two or three or any number of people, of whatever sex? If it is constitutionally irrational to stand by the one man-one woman view of marriage, why is it not irrational to stand by the one-to-one view of marriage? The only answer that gay marriage proponents can give to this question is one they cannot give: That marriage has traditionally been defined as between two people. To make that argument undermines their position.
I doubt that the Sixth Circuit’s panel decision will stand. The entire Sixth Circuit might review it en banc and will bring that Circuit in line with every other circuit and federal court that has addressed this question. But the opinion is refreshing because it says, “Hey, wait a minute. These are serious political questions with serious implications. Courts have no business substituting their judgment for the people’s in a democracy. “