Voices of dissent are harder to find in the growing stack of state-by-state court rulings redefining marriage. Last year, in the very sloppy United States v. Windsor ruling, the U.S. Supreme Court on the one hand said the federal government ought not to impose a marriage definition, but on the other hand told the states they can’t define marriage as they always have. A week ago, the 4th U.S. Circuit Court of Appeals overturned Virginia’s law defining marriage between one man and one woman. The 2-1 decision followed similar rulings out of Utah and Oklahoma.
Judge Henry Floyd wrote the opinion saying marriage should change with the times and, essentially, that judges get to interpret the times. But the decision met with strong dissent. Judge Paul Niemeyer said there was no fundamental right to same-sex marriage, and offered rational reasons not to recognize it. This decision was the third time a federalappeals court has struck down a state law since the Windsor case did away with the federal definition of marriage.
Three judge panels issued 2-1 rulings in all three cases. The courts are likely to rehear the cases en banc, meaning “in full court.” That step likely would precede an appeal to the Supreme Court.
Also worth noting, Wisconsin’s Supreme Court handed down a rather odd ruling Thursday. That state has a constitutional amendment banning same-sex marriage that also prohibits granting similar legal status to other types of unions. But the state Supreme Court let a separate domestic partnership scheme stand.
Similar confusion reigns in Colorado, where the county clerk in Boulder started issuing marriage licenses to same-sex couples based on her reading of a federal court ruling from Utah. State Attorney General John Suthers asked the Colorado Supreme Court to order the Boulder County Clerk to stop issuing the licenses, saying this herky-jerky method of enforcing some laws and not others is causing citizens to lose faith in their government.
“Social and legal chaos ensues because the public is left confused and uncertain about the legal validity of such marriages and the role of clerks versus the role of the courts,” Suthers wrote in his request.
One more voice of reason can be found in the ruling from the 10th U.S. Circuit Court of Appeals in Denver that struck down Oklahoma’s definition of traditional marriage. Judge Jerome Holmes wrote in a concurring opinion that he didn’t think animus, or hatred, was involved in keeping marriage between a man and a woman. That statement is important because the accusation of “hate” is a huge weapon in the arsenal of those demanding the redefinition of marriage.
Holmes said there was no evidence of hostility toward gay people in Oklahoma.
Voters there just reinforced what always had been: Same sex couples couldn’t marry before the state amendment, and they couldn’t after, either. It was simply a reflection of what had always been.
Listen to Mary Reichard’s weekly Legal Docket segment on The World and Everything in It: