Legal News: Victories for Traditional Marriage

In addition to the New York and Georgia court rulings, other courts have ruled favorably for legislation or constitutional amendments to ban same-sex "marriage." Here are the new rulings, and how they may affect the overall debate:

- The Eighth Circuit has upheld a Nebraska constitutional amendment banning same-sex marriage, on the grounds that it withstands Equal Protection rational basis review. In Citizens for Equal Protection v. Bruning, the federal appeals court applied the lower standard of scrutiny in considering a challenge to section 29 of the state's constitution. It provides that:

"Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska."

The crux of the Eighth Circuit's reasoning was to find a "rational relation to a legitimate state interest" which the majority in Romer did not recognize. In Romer, the Supreme Court had cited a denial of equal access to the political process as its rationale for striking down a Colorado constitutional amendment prohibiting the granting of minority or protected status to homosexuals. Any denial to a group of the ability to convince other members of the public that it deserved protected statuts, quota systems, etc. warranted a "compelling" justification. However, in Bruning, the court demonstrated the fallacy in this argument by pointing to a number of other practices commonly outlawed in state constitutions, such as polygamy. No one (at least yet) is claiming that polygamists have a "right" to convince the public that their aberrant lifestyle deserves constitutional protection.

Based on this logic, the court then applied rational basis review to the amendment, upholding it on the grounds that the State of Nebraska has a legitimate state interest in taking the view that protecting traditional marriage, one man and one woman, is the optimal arrangement for raising children.

One thought from Bruning is that it raises serious questions about to what extent Romer can (or should) be applied in other Equal Protection cases. The Eighth Circuit drew its reasoning from Justice Scalia's dissent in that case, but with Justice Kennedy still on the court, along with the liberal wing (Justices Stevens, Ginsburg, Souter, and Breyer) the Romer votes are all still on the Court. What implications could arise if more laws are subjected to strict scrutiny, or even if the courts do not find a rational relation to a legitimate state interest, as was the case in Romer? "Interest groups" such as child rapists, pimps who wish to legally own their prostitutes, and even (as Justice Scalia pointed out in his Romer dissent) polygamists could attempt to strike down laws aimed at the public welfare and reinforcing morality and the natural law, with disastrous consequences.

Applying levels of scrutiny ultimately comes down to a value judgment. Either judges will control what is subject to the regulations of the democratic process, striking down any value judgments society wishes to make through legislation, or traditional values, expressed through laws protecting the nuclear family and criminalizing sexual deviance, will remain in place in the legal system, serving to keep society together. Bruning was a vote for the latter and against the former, and this precedent can only strengthen the cause of protecting traditional values. How it will be applied, however, remains to be seen.

Source: http://www.ca8.uscourts.gov/opndir/06/07/052604P.pdf

- The Tennessee Supreme Court has rejected a challenge to that state's ban on same-sex marriage, which means it will go on the ballot in November. In ACLU of Tennessee v. Darnell, the state's high court ruled that the ACLU did not have standing to bring the suit. This may have less impact on future jurisprudence than Bruning, which was decided on the merits, but it is still an important victory in passing a marriage amendment in the Volunteer State. It remains to be seen how the Tennessee court would rule on the merits, and I am unacquainted with Tennessee law, but we may find out if opponents bring another lawsuit to challenge the marriage amendment's appearing on the ballot in November.

Sources: http://www.chattanoogan.com/articles/article_89189.asp; http://www.tncourts.gov/OPINIONS/CURRENT/DarnellrcOPN.pdf