Michigan Defense of Marriage Act Gets Affirmed in Federal Appeals Court

 The 6th U.S. Circuit Court of Appeals on Thursday overturned a March ruling from a federal judge who found Michigan's Defense of Marriage Act was unconstitutional.

The case, brought by April DeBoer and Jayne Rowse, a Hazel Park couple who sued the state because they can't jointly adopt their children, is now likely to move to the Supreme Court.

Two of three judges on the appeals court panel found that it should be lawmakers, not judges, who decide the issue.

In an opinion written by 6th Circuit Judge Sutton:

" This is a case about change—and how best to handle it under the United States Constitution.  From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen. That would not have seemed likely as recently as a dozen years ago.

For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world.

But things change, sometimes quickly. Since 2003, nineteen States and the District of Columbia have expanded the definition of marriage to include gay couples, some through state legislation, some through initiatives of the people, some through state court decisions, and some through the actions of state governors and attorneys general who opted not to appeal adverse court decisions.

Nor does this momentum show any signs of slowing. Twelve of the nineteen States that now recognize gay marriage did so in the last couple of years. On top of that, four federal courts of appeals have compelled several other States to permit same-sex marriages under the Fourteenth Amendment.

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee.

What we have authority to decide instead is a legal question:  Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?

Through a mixture of common law decisions, statutes, and constitutional provisions, each State in the Sixth Circuit has long adhered to the traditional definition of marriage. Sixteen gay and lesbian couples claim that this definition violates their rights under the Fourteenth Amendment.

The circumstances that gave rise to the challenges vary. Some involve a birth, others a death. Some involve concerns about property, taxes, and insurance, others death certificates and rights to visit a partner or partner’s child in the hospital. Some involve a couple’s effort to obtain a marriage license within their State, others an effort to achieve recognition of a marriage solemnized in another State. All seek dignity and respect, the same dignity and respect given to marriages between opposite-sex couples. And all come down to the same question: Who decides?

Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?

II. Does the Due Process Clause or the Equal Protection Clause of the Fourteenth

Amendment require States to expand the definition of marriage to include same-sex couples?

A federal court of appeals begins by asking what the Supreme Court’s precedents require on the topic at hand. Just such a precedent confronts us. 

In the early 1970s, a Methodist minister married Richard Baker and James McConnell in Minnesota. Afterwards, they sought a marriage license from the State. When the clerk of the state court denied the request, the couple filed a lawsuit claiming that the denial of their request violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The Minnesota Supreme Court rejected both claims. As for the due process claim, the state court reasoned: "The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. . . . This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause . . . is not a charter for restructuring it by judicial legislation." 

As for the equal protection claim, the court reasoned: "[T]he state’s classification of persons authorized to marry" does not create an "irrational or invidious discrimination. . . . [T]hat the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate . . . [creates only a] theoretically imperfect [classification] . . . [and] ‘abstract symmetry’ is not demanded by the Fourteenth Amendment."   

The Supreme Court’s decision four years earlier which invalidated Virginia’s ban on interracial marriages, did not change this conclusion. "[I]n commonsense and in a constitutional sense," the state court explained, "there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.

Baker and McConnell appealed to the United States Supreme Court. The Court rejected their challenge, issuing a one-line order stating that the appeal did not raise "a substantial federal question." This type of summary decision, it is true, does not bind the Supreme Court in later cases. But it does confine lower federal courts in later cases. It matters not whether we think the decision was right in its time, remains right today, or will be followed by the Court in the future. Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions "until such time as the Court informs [us] that [we] are not."

The Court has yet to inform us that we are not, and we have no license to

engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves

This case ultimately presents two ways to think about change. One is whether the Supreme Court will constitutionalize a new definition of marriage to meet new policy views about the issue. The other is whether the Court will begin to undertake a different form of change—change in the way we as a country optimize the handling of efforts to address requests for new civil liberties.

If the Court takes the first approach, it may resolve the issue for good and give the plaintiffs and many others relief. But we will never know what might have been. If the Court takes the second approach, is it not possible that the traditional arbiters of change—the people— will meet today’s challenge admirably and settle the issue in a productive way?

In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers.

Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

For these reasons, we reverse."

The dissenting judge's opinion is about midway through the opinion, touting a stronger response from the judicial branch at the appeals court level.  Do you believe that the appeals court made the right decision?  What are your thoughts on the topic?

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The 14th amendment is being twisted and perverted. When the South lost the Civil War they refused to grant rights to x-slaves so the 14th Amendment was passed to assure slaves who were born here or naturalized here could gain the rights granted under the Constitution and other laws that benefited U.S. citizens. The 14the ammendment reads as follows, in part: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.The 14th amendment was never meant to be bastardized the way it is being done today. Marriage is for the union of men and women not same sex couples or dogs and cats or men and sheep. Since marriage is going to be redifined there will be no end to what can be defined as marriage. Mother and son, father and daughter, man and his dog, woman and her vibrator? It's up for grabs. A real big problem I see with same sex marriage is that they will now have the same opportunity to adopt children just as heterosexual couples and can be given first choice of available children. Kids belong in what is considered traditional marriages with a mother and father not mother and mother or father and gold fish.

Willy, of course you know everything you just said is "politically incorrect nowadays". Thanks for being real and traditionally cogent to the issues. There are sure a lot of people in this warped country today that think anything and everything should be legal and totally accepted by all the population. And if you don't think like the fringe liberal progressives, you yourself become the target of criticism. Usual response is that you are racist or ignorant of today's life. Nothing is farther from the truth, if you ask most Americans that work and pay taxes, and lead a constructive and positive life. Like Reagan said, they are the "silent majority". The ones that are too busy making progress and minding their own family/business, they don't want to keep wasting time with these bozo's. P.S. How does Pres. Obama say he believes marriage is between a man and woman, when first running for Pres.. Then later decides "gay marriage is okay"? Political chameleon. 

The 'equal protection of the law' argument often used by the proponents of same-sex marriage fails to note that marriage traditionally defined as between a man and a woman is always available to everyone of marriageable age, even LGBTs. 

If one wants to change the definition of marriage to include same-sex unions, that requires legislative action.  The court, in my opinion and theirs, got it right.

Good points Aquaman and X. The fact that the actual definition of marriage must be changed is a very good point. After all nobody was ever denied the opportunity to get married as long as it was between a man and a woman.

 Also, each state does have a legal age limit for marrying (and often other legal restrictions on marriage), that differ between states depending on what the state legislators have deemed proper (as noted here) so having state legislators define other parameters on marriage would not be new. 

Having courts effectively redefine marriage as something other than what state law defines it is not a prerogative minus clear unconstitutionality of the definition.  MCL 551.1 passed in 1996 says that "Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting that unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state." 

State law does not preclude legally enforceable civil unions or strictly ceremonial weddings by people of the same sex, but it does stress a strict interpretation of the institution of marriage between a man and woman only. 

I should be able to marry my dog if I want. It is the only way to guarantee inheritance. If I has not need screwed out if inheritance by a marriage I may feel differently. OR marriage should have NOTHING to do with inheritance adoption, hospital visitation etc... Marriage by what it is now days makes me want to puke.

Jane, you can have any relation you want to with your dog and draw up any legal device you want to see that they get your kibbles and bits after your demise, but you have no reason to 'marry' your dog.   Marriage is a social institution designed through history by heterosexual people for heterosexual people in order to best provide for kids produced by such union.  Why should dog-lovers and homosexuals need coopt such an institution when they can freely associate and form their own unions with partners?

Let's not forget that for a long period of history in the USA, common law marriages were the norm, unions that were created without any benefits thrown in by the state.  Some of these 'benefits' that eventually were given were to foster stronger heterosexual unions, and assist the raising of the products of those pairings during a time when men were the primary breadwinners and women were the child-rearers. 

Many of these laws and 'benefits' should be revisited and perhaps changed to avoid blatant discrimination against the homosexual community, but the traditional definition of marriage should not be changed.   

ok. Then get rid of EVERY benefit that that word marry/marriage entails from the state/fed/courts. A parent remarrying should not screw a child from the inheritance that was 100% theirs before the marriage when the parent was single. the *marriage should then in that case you guys speak of be a religious thing with no meaning of 'contract' other than"I want a priest" to do this instead of a judge or notary(at that point of future change)

All the benefits and contracts that benefit a man or woman by marrying someone should not exist. Being married means nothing other than I get your stuff when you die and get to control your visitation if your sick. Marriage is worthless to everyone except the poorer of the two involved. That way all those 'benefits' go to whoever the person assigns them to without a doubt of probate involvement and lawsuits.

as far as man and woman, yeah whatever, who cares what gender people are that raise kids, it has nothing to do with whether they are good people or not. considering the majority of pervs are men we should be cheering on lesbians raising adopted kids.

let marriage be a church thing and nothing more, 'no rights' to ones property from that stupid word!!!

Unfortunately, we can't so easily just divorce the legal ramifications out of marriage itself.  Both people who marry are effectively making a social contract between themselves, so it becomes a 'legal thing' even if neither partner retains a lawyer before they tie the knot in church.

Marriage is growing more out of fashion because betrothal can lead to the state effectively penalizing the ritual.  For example, a poor young mother-to-be may lose out on a lot of supplementary state assistance if she marries the father-to-be.  Public assistance 'rewards' single mothers with low income and a wealthier baby-daddy more than married mothers who may have a  husband who makes less than the aforementioned baby-daddy.  

In this way and others the state is actually subsidizing the poorer citizens to avoid marriage.

Ps typing in my phone sucks for spelling and grammar

I've been of the mind that for legal purposes that civil unions be used in all legal proceedings.. if people so choose to be married they can still be married in the traditional way in a church, the marriage just wont be legally binding. To me it would save a lot of argument in this ever changing world.

Hi Jane, welcome back. Not a bad idea Dave, but it doesn't satisfy what the LGBT community insists on having, a legal redefinition of the entire word marriage. If you see my link, it's this paltry national population of about 3%, a very small minority of the U.S. population, that is pushing the agenda year after boring year. Nonsense is about the silent majority that don't participate in this lifestyle, but still don't want to be politically incorrect for disagreeing with it, so to keep the peace. When are the 97% going to step up and be heard? Probably never, chickens. 



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