J. Matt Barber
Supreme Court, 'gay marriage' and the Easter Bunny
By J. Matt Barber
November 10, 2014

There is no such thing as the Easter Bunny.

If there arose a global movement that loudly and proudly demanded "bunny equality," and a dozen or more activist federal judges suddenly declared the Easter Bunny to be real, and thousands of rabid rabbit wannabees pranced in pink bunny suit parades, all the while pretending to be, even believing themselves to be, Easter Bunnies, and liberal legislators passed "anti-discrimination" laws presuming to force everyone else to join in on the delusion (severely punishing those who refused), there'd still be no Easter Bunny.

There is no such thing as "same-sex marriage."

There can't be.

It's an idea no less silly than a giant pink bunny hiding eggs behind trees. It's an oxymoron. It's contradictio in terminis. It's like pointing to your lawn and saying, "What a beautiful green sky."

Oh, sure, there are thousands of people hopping around pretending to be, perhaps even believing themselves to be, "married" to someone of the same sex. Still, and while nice folks they may be, these nice folks labor under an unfortunate fairytale.

Fairytales are for children.

The "gay marriage" fairytale hurts children.

Here's what marriage is. Marriage is the God-ordained, lifelong, covenantal union between man and wife, designed to provide men, women and children optimal stability and overall well-being. Marriage is that biologically, spiritually and morally centered institution calculated to ensure responsible procreation and perpetuate the human race. Marriage, real marriage, represents the fundamental cornerstone of any healthy society (any society that hopes to survive, at least).

Here's what marriage is not:

Anything else.

On Thursday, the 6th Circuit Court of Appeals in Ohio agreed. It rightly upheld natural marriage laws in Michigan, Ohio, Kentucky and Tennessee. This is huge. It has kneecapped the left's propagandist "gay-marriage-is-inevitable" myth. It's created a conflict between federal circuits, which means, almost certainly, that the U.S. Supreme Court will, once again, weigh in on extremist efforts to deconstruct marriage, nationwide, via lower court judicial fiat.

In the 6th Circuit's decision, Judge Jeffrey Sutton wrote, "Of all the ways to resolve this question, one option is not available: a poll of the three judges of 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, one that would allow just three of us – just two of us in truth – to make such a vital policy call for the thirty-two million citizens who live within the four states of the 6th Circuit."

Ah, judicial restraint. How refreshing.

Here's what most folks don't know. The U.S. Supreme Court has already settled the "gay marriage" debate. In its 1972 Baker v. Nelson decision, the high court found that there is no "federal question" surrounding the definition of marriage. That is to say, there is no constitutional "equal protection" right (or any other right for that matter) to so-called "same-sex marriage."

This, my friends, is the law of the land.

The 6th Circuit upheld natural marriage based on the Supreme Court's Baker decision, noting that it remains controlling law. "The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves."

In Baker, the Minnesota Supreme Court ruled that a law protecting the timeless definition of marriage as between one man and one woman did not violate the U.S. Constitution: "The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis," the court found, further recognizing that "there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."

The case was appealed to the U.S. Supreme Court, which agreed that laws limiting marriage to the natural man-woman binary requisite did not raise "a substantial federal question." For legal purposes, this is equivalent to the high court affirming the decision on the merits.

And so Baker became, and remains, precedent.

In keeping with the spirit of Baker, Sutton continued, "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, or not all, of our ancestors, and shared still today by a significant number of states."

The Supreme Court has, in other cases, likewise upheld the critical nature of natural man-woman marriage.
  • Marriage is "fundamental to the very existence and survival of the race." Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).

  • "An institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress." Maynard v. Hill, 125 U. S. 190 (1888).
Every rouge federal court that has somehow divined a constitutional "right" for two people of the same-sex to "marry" is not only out of touch with reality, it's out of touch with the U.S. Supreme Court.

Even so, the final outcome is yet to be seen. It remains unclear just where Justice Anthony Kennedy, the "gay marriage" swing vote, will ultimately come down when the high court revisits the issue as early as June 2015.

The New York Times isn't sure what he'll do.

Nobody is.

Soon after last year's disastrous Windsor decision, the Times observed: "Justice Kennedy writes that the Defense of Marriage Act violates the principles of federalism, which allow states to largely chart their own course."

"The State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism," Kennedy opined.

Hmm: "The State's power in defining the marital relation." That's promising. While, in reality, nobody, not even the states, has the power to define, or to redefine, marriage (that's solely within God's purview), that Kennedy evidently believes this to be a "states' rights" issue bodes well for both the rule of law and for the preservation of marriage.

If he holds true to these federalist principles and observes the Supreme Court's established precedent in Baker v. Nelson, then marriage will live to see another day.

If he does not – if he pulls a "gay" Easter Bunny from his hat – then this thing gets ugly.

© J. Matt Barber


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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J. Matt Barber

Matt Barber is founder and editor-in-chief of BarbWire.com and an attorney concentrating in constitutional law. In addition to his law degree, Matt holds a Master of Arts in Public Policy from Regent University.... (more)


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