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Federal appeals court rules in favor of gay marriage bans

Nov 6, 2014

Photo from the 2011 Capital Pride Parade in Washington, D.C.
Credit user ep_jhu / Flickr

A federal appeals court in Cincinnati has upheld anti-gay marriage laws in four states, including Michigan's.

The court's ruling counters rulings from other courts that have ruled against the bans.

The justices reiterated the question in front of them is not whether gay marriage is a good idea, but whether the 14th amendment prohibits a state from defining marriage.

The justices argue that the overturning of the federal Defense of Marriage Act doesn’t prohibit states from defining marriage as between one man and one woman. They wrote that states can define marriage as they see fit, writing, “the Fourteenth Amendment permits, though it does not require, states to define marriage in that way.”

“A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage 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. Hesitant, yes; but still a rational basis, some rational basis, must exist for the definition,” the justices wrote.

The rationality has to do not with religious laws, the court wrote, but nature’s laws: the “need to regulate male-female relationships and the unique procreative possibilities of them.”

The court wrote the claim that Michigan’s marriage laws are underinclusive is “fair enough.” But, the justices wrote, that “does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges, even a better way supported by evidence and, in the Michigan case, by judicial factfinding.”

“By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the states created an incentive for two people who  procreate together to stay together for purposes of rearing offspring. 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. That explanation, still relevant today, suffices to allow the states to retain authority over an issue they have regulated from the beginning.”

The justices say elected lawmakers, not life-tenured judges, are responsible for answering whether these “benefits” of traditional marriage make up for the costs that gay couple pay.

The Associated Press reports that this latest ruling sets up a potential review by the U.S. Supreme Court - something the Supreme Court recently passed on, surprising many.

The 6th U.S. Circuit Court of Appeals panel heard arguments on gay marriage bans or restrictions in Ohio, Michigan, Kentucky and Tennessee. The court split 2-1, with Circuit Judge Jeffrey Sutton writing the majority opinion.

MPRN’s Rick Pluta reports the majority on the court said the question should be settled by political action, not the courts:

From the majority opinion: "We must keep in mind that something can be fundamentally important without being a fundamental right under the Constitution."

You can read the opinion here.