Judicial review


By Jim Killebrew

[November 08, 2014]  Gary L. Bauer, who is the head of a 501(c)(3) non-profit organization, American Values at 2800 Shirlington Road, Suite 950, Arlington, VA 22206, has written the following report on the legal findings regarding the definition of marriage. The Sixth Circuit Court of Appeals has ruled that states have the right to preserve what the people in the state define as normal marriage rather than the judicial legislative action.

Gary L. Bauer writes:

"A federal appeals court has finally gotten it right on marriage!"

"Yesterday the Sixth Circuit Court of Appeals ruled that states have the right to preserve the meaning of normal marriage and that thousands of years of tradition and basic biology should not be tossed aside lightly."

"Judge Jeffrey Sutton's opinion should be required reading in the Oval Office and every law school across the country. He comes down squarely on the side of the people and, most notably, against the notion of judicial activism. Sutton's opinion exposes how the left has perverted our justice system."

 "Rejecting Judicial Activism. Sutton refused to engage in judicial activism and clearly understood that it was not his role to impose his morals on the people:"

"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. . . .

"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 . . . 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."

"Respecting Precedent. Sutton acknowledged what virtually every other federal court has so far chosen to ignore -- that there is precedent binding on the federal courts against same-sex marriage. Forty-two years ago, the Supreme Court refused to hear an appeal challenging the Minnesota Supreme Court's ruling in Baker v. Nelson upholding the normal meaning of marriage. Sutton wrote, "we have no license to engage in a guessing game about whether the [Supreme] Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves."

"What about the Supreme Court's Windsor decision overturning part of the Defense of Marriage Act? Judge Sutton correctly notes thatWindsor "never mentions Baker, much less overrules it. . . . Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it."

"Sutton suggests that Windsor actually reinforces Baker by saying that the federal government was out of bounds for trying to limit the state's ability to define marriage -- even if that included same-sex couples."

"Rejecting Irrational Arguments. Pointing to the Supreme Court's ruling against bans on interracial marriages, some liberal judges have declared that traditional marriage laws are "irrational." Of that specious argument, Sutton wrote:"

"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. . . . It is not society's laws or for that matter any one religion's laws, but nature's laws (that men and women complement each other biologically), that created the policy imperative [of marriage law]."

"Basic biology is not irrational -- one man + one woman = marriage. (Suddenly liberals are looking like anti-science zealots!)"

"Sutton also warns that by declaring the biological definition of marriage irrational, we are opening the door to polygamy. "If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage." The left, as Sutton notes, has no legal or logical answer for how marriage, once expanded, could also be limited to just two people. Polygamy must follow same-sex marriage."

"With this decision upholding traditional marriage laws, we now have a conflict between appellate courts that can only be resolved by the Supreme Court. I have no doubt that the four liberals on the high court would impose same-sex marriage on every state in the union."

"But Sutton's reasoning is impeccable. We can only hope and pray that his argument in favor of states' rights might persuade Justice Anthony Kennedy to allow the democratic process to prevail - to let the people decide. While I believe the prospect of 50 different definitions of marriage is unwise, the best outcome we're likely to get at this point is a decision permitting every state to define marriage for itself."

Remember, this decision that Bauer has reported is not based on the religious, moral value structure that opponents normally use as an argument against the re-definition of marriage, rather, it is a logical, reasonable legal argument based on precedent in the legal system. In America the people decide on such matters; it is not the responsibility of the judicial system to overturn the will of the people with contrary judicial review, especially when states have voted a preference for a traditional marriage definition just to have it overturned by a judge.

[By JIM KILLEBREW]