The Supreme Court is issuing a flurry of high-profile decisions in the final days of the current session, but an appeals court decision this week virtually guarantees the highest court in the land will rule on the definition of marriage one year from now,
On Wednesday, a three-judge panel of the 10th U.S. Circuit Court of Appeals voted 2-1 to strike down a Utah law defining marriage as the union of one man and one woman. The judges did place a stay on the ruling, meaning the current law stands until the Supreme Court weighs in on the matter. State officials insist they will appeal.
In the ruling, the two judges called limiting marriage to heterosexual couples a clear violation of gay couples’ rights.
“We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws,” read the opinion. “A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union,” the court said.
Traditional marriage supporters consider that rationale and similar court rulings to be ideological nonsense.
“There is no logic there. Why draw an arbitrary line between the two persons and where did that come from? Marriage has always been defined as between one man and one woman in the United States and in Utah particularly. Polygamy is outlawed at the highest level of the Supreme Court. What possible rationale is this to say that it is narrowly tailored to two. That came out of left field,” said Liberty Counsel Action Vice President Matt Barber, who is also founder of barbwire.com.
He admits same-sex marriage advocates are on a legal winning streak and that a majority of Supreme Court justices are personally sympathetic to their argument, based on a pair of 2013 rulings that struck down a California constitutional amendment enshrining traditional marriage and ordered federal benefits extended to same-sex spouses in states where the couples were legally married.
Despite the apparent legal momentum on the side of same-sex marriage, Barber says last year’s Supreme Court ruling actually strengthens the case on his side of the debate.
“Even the United States Supreme Court ruled in the DOMA decision that struck down Section 3 of the Defense of Marriage Act…the hubris is astounding for (Kennedy) to imagine that he can somehow redefine the institution of marriage for federal purposes. He argued from a federalist standpoint and said unequivocally in the majority decision and in the dissent decision that states have a right to define marriage,” said Barber.
Barber says other court decisions also weigh in favor of traditional marriage.
“The 9th Circuit, the highest level that has looked at homosexuality and whether it is a suspect minority class, has said that it does not reach strict scrutiny,” he said. “They have said, ‘No, homosexuality is behavior. It is not an immutable characteristic.’ So there’s hope here yet, but with Justice Kennedy there’s no telling. You might as well flip a coin,” said Barber.
Barber says the Utah marriage case is at the front of the line for this issue reaching the Supreme Court since it is the first to be ruled upon at the appellate level. He says that means the justices will likely hear arguments late this year or early next year with a decision coming down in June 2015.
“They may have to rule pretty quick because there has been an emergency stay. That’s the good news. The 10th Circuit has granted a stay on this so that we don’t see all the homosexual activists clamoring to the courthouses to get their marriage certificates,” he said.
“I think within a year we will have a final disposition on Section 2 of the Defense of Marriage Act as well as whether or not there’s somehow a constitutional right for a man to marry a man and a woman to marry a woman, something the founding fathers couldn’t have even conceptualized,” said Barber.
Barber says he and his traditional marriage allies are undaunted by the Utah decision and will fight all the way to the finish line.
“The homosexual activists are celebrating and the leftists are celebrating, but this is not a final decision by any stretch,” he said.