Veteran Supreme Court reporter Richard Wolf says there’s an Achilles heel in recent federal appeals court decisions in favor of same-sex marriage – most were not unanimous and the dissenting judges waged excellent arguments that will most certainly be considered when these cases reach the nation’s highest court.
In an article appearing in USA Today, Wolf cites recent dissenting opinions from Paul Kelly in the Denver-based 10th Circuit and Paul Niemeyer in the Richmond-based 4th Circuit that are the “last best hope” for traditional marriage supporters and should serve as a “wake-up call” for proponents of same-sex marriage.
“These are very thoughtful, well-written opinions by respected judges,” said Theodore Boutrous, one of the lawyers representing two gay and lesbian couples in Virginia. “It does suggest that there’s a real possibility that one of the other circuits is going to go the other way.”
Ever since last year, when the U.S. Supreme Court ruled 5-4 that the federal government must recognize same-sex marriages performed in states where they are legal, 19 consecutive states have overturned bans on the practice in their states. This occurred even in those states where citizens voted to amend their state Constitutions, which some judges ruled is in violation of the U.S. Constitution’s guarantee of due process and equal protection.
As Wolf reports, the dissenting judges disagree for several very good reasons:
First, there’s no fundamental right to same-sex marriage in the Constitution, a notion that is a very recent construct and not deeply rooted in history.
“To now define the previously recognized fundamental right to ‘marriage’ as a concept that includes the new notion of ‘same-sex marriage’ amounts to a dictionary jurisprudence, which defines terms as convenient to attain an end,” Niemeyer said in the Virginia case decided earlier this week.
Second, the Supreme Court has already ruled in U.S. v. Windsor – the case decided last June which struck down a portion of the Defense of Marriage Act – that states and voters have the right to define marriage as they see fit.
“If the states are the laboratories of democracy, requiring every state to recognize same-gender unions — contrary to the views of its electorate and representatives — turns the notion of a limited national government on its head,” said Kelly in a case in Utah that was decided in late June.
Third, if states are not permitted to limit marriage based on sexual orientation, what’s to stop them from allowing practices such as bigamy, incest and polygamy?
As Niemeyer noted in his opinion, the Virginia panel’s majority failed to explain “why this broad right to marry … does not also encompass the ‘right’ of a father to marry his daughter or the ‘right’ of any person to marry multiple partners.”
Fourth, state marriage laws are based around issues of procreation and parenting that are truly unique to opposite-sex couples.
“It is biologically undeniable that opposite-gender marriage has a procreative potential that same-gender marriage lacks,” Kelly said. Furthermore, he said, “the state could rationally and sincerely believe that children are best raised by two parents of opposite gender.”
Even though lawyers who represented same-sex couples in the past say these arguments have been heard before, Boutrous reminded that the conservative Supreme Court justices who dissented in last year’s decision also cited concerns about how recently same-sex marriage has emerged.
Austin Nimocks, senior counsel with Alliance Defending Freedom, a firm that defended the state bans at both appeals courts, agreed that the lengthy and well-written dissents written by both Kelly and Niemeyer should reinforce those who oppose same-sex marriage and voters who believe they deserve to have a voice in the process.
Many battles have been won by proponents of same-sex marriage, but they cannot yet claim victory in the war to protect the institution of marriage.
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