Insider Report on Marriage Oral Arguments

The oral arguments on Wednesday regarding the constitutionality of laws defining marriage as one man and one woman provided some insight as to how the 6th Circuit Court of Appeals might rule, but comments and questions by judges don’t always signal the final result.  However, the decision will most likely be a 2-1 vote, whichever way it comes out.

There seemed to be two major legal arguments of utmost concern to the judges.

The Two Legal Issues

The first legal issue that received a lot of attention was whether an appellate court, bound by the decisions of the United States Supreme Court, can anticipate how the Supreme Court will rule on a matter when that matter has previously been decided by the Court in a “summary decision.”  A summary decision is one in which there is no “full blown” opinion by the Court.

Mainstream media has not reported on the fact that in 1972 the U.S. Supreme Court, in the case of Baker v. Nelson, rejected the appeal of a decision by the Minnesota Supreme Court in which it rejected the argument that same-sex marriage was constitutionally required.  The U.S. Supreme Court said in the Baker case that same-sex marriage did not present a “substantial federal question,” effectively saying that marriage laws were a state issue, not a constitutional one.

The second legal issue that garnered the most discussion was whether the state could establish a rational basis for defining marriage as between a man and a woman.

Should Baker be followed?

As to the first legal issue, Justice Sutton seemed to understand the requirement that it follow established U.S. Supreme Court precedent and not guess at what the U.S. Supreme Court might do. He noted that the Windsor decision by the U.S. Supreme Court last summer did not reach the question of state marriage laws. He seemed to understand the argument that the high court’s opinion was built upon the doctrine that the federal government should, in general, respect states’ rights on matters of domestic policy, and that the federal government had demonstrated “animus” against same-sex couples by changing its long-standing policy of deferring to the states’ definitions of marriage.

Justice Daughtrey seemed to reject the idea that Windsor was founded on a “states’ rights” type of analysis and asserted that Windsor was a clear “signal” that the high court would require same-sex marriage. It seemed to be her view that the 6th Circuit should disregard Baker and proceed on the assumption that the Supreme Court would rule in favor of same-sex marriage. (As an aside, Justice Daughtrey, when on the Tennessee Supreme Court, wrote the opinion giving Tennessee a state constitutional right to privacy that was later used to give us our “right to abortion” a few years later!)

Justice Cook seemed to indicate that perhaps this was a matter to be decided by the people of the states. In that sense, she seemed to be indicating that the Supreme Court’s Baker decision was either correct or should be respected as the law until the high court expressly ruled otherwise.

Are marriage laws rational?

On the second legal issue—was there a rational basis for the states’ laws?—Justice Daughtrey either could not grasp or chose not to grasp the very clear and cogent argument made by Tennessee’s attorney. He explained repeatedly to Justice Daughtrey the flow of the state’s argument, namely, that:

•    the state had an interest in wanting to minimize out-of-wedlock births and the problems associated with them,
•    it was rational for the state to believe that it was best for children to have a mom and a dad and for the parental relationship to be stable. (One opposing attorney actually said that it was not rational to believe kids did best with a mom and a dad because it was now a “discredited” idea), and
•    it was rational for the state to conclude that encouraging and fostering marriage between men and women might further the best interest of children.

It was noted that it was rational for the state, in trying to encourage stable relationships into which a child might be born, to focus on heterosexual relationships and not homosexual relationships.  It was rational to focus on heterosexual couples in regard to out-of-wedlock births because same-sex marriages/relationships can never unintentionally result in children being conceived through sexual relations.

However, Justice Daughtrey just kept asking why the state had an interest in encouraging procreation and how defining marriage as a man and a woman encouraged procreation, seemly ignoring the point that the state’s interest was in a child’s well-being and was not in encouraging procreation for the sake of procreation. By her incessant line of questioning, it appeared that Justice Daughtrey either could not grasp or chose not to grasp the fact that same-sex relationships cannot accidentally or unintentionally create a child.

Justice Sutton, however, seemed to understand that the state had the right to determine what issues it wanted to address and how to address an issue. He even noted that states would seem to have the right to address an issue in “steps” or “stages.”

In other words, Justice Sutton understood that there may be multiple issues a law could address and multiple ways the law could address that issue, and that a state did not have to justify to the court why it didn’t address other issues or address them in a way someone else thought better.

In this regard, Mr. Whalen was very direct with Judge Daughtrey. He reminded her that once a state demonstrated a rational basis for its law that the court’s inquiry was over, that the state did not have to justify to the court why it didn’t do something else.

In fact, the arguments closed with Mr. Whalen noting that California as a sovereign state had the right to determine what issues it wanted to address and how to address them and did so by choosing to expand its definition of marriage and that, as a sovereign state, Tennessee should be given the same freedom to decide what it wants to do.

Watch David’s final report after the oral arguments on this YouTube video:

Related News Stories About the 6th Circuit Oral Arguments on the Constitutionality of Marriage:

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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