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Pro-family lawyers rejoiced today as two more court victories were handed down on the side of defending traditional marriage.
In the most important victory, a three-judge panel of the 8th U.S. Circuit Court of Appeals reversed a ruling that stuck down Nebraska's state constitutional amendment that bars same-sex marriage and civil unions.
Dr. James Dobson, chairman of Focus on the Family Action, called it a textbook example of how courts should interpret laws rather than make them.
"The judges showed respect for the will of the 70 percent of Nebraskans who voted six years ago to keep marriage defined as the union of one man and one woman, noting in their decision that they were 'highly deferential' to those who approved the amendment," he said.
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Dr. Dobson noted the importance of the court recognizing the state has a legitimate interest in not allowing marriage to be tinkered with.
"Groups like ours have long desired to hear that rationale come from judicial chambers, because it means judges recognize that what's best for society and its children is the key point in determining whether same-sex marriage should be legalized."
Also today, Tennessee's highest court dismissed an attempt by the American Civil Liberties Union (ACLU) to stop a state marriage amendment from going on the ballot in the fall.
No right to same-sex marriage
Chris Stovall, senior legal counsel for the Marriage Litigation Project of the Alliance Defense Fund, said the 8th Circuit decision shoots a hole in the argument that gays have a "right" to same-sex marriage.
"The appeals court held that it does not violate any federal constitutional rights to have a state constitutional amendment limiting marriage to the union of one man and one woman," Stovall told CitizenLink.
David Bydalek, who heads Nebraska Family First, called today's decision "a vindication for the overwhelming majority of Nebraskans who voted to preserve the traditional definition of marriage."
The Nebraska marriage amendment passed in 2000 with the support of 70 percent of the voters. It not only defines marriage to be the union of one man and one woman — it also bans counterfeits to marriage, like civil unions.
"Today's decision is a victory for the concept that the people of a state are free to define their most fundamental institutions," Bydalek said. "I also think it's a big blow to judicial activism."
The Nebraska decision was the first federal legal challenge to a state marriage initiative.
Mat Staver, president of Liberty Counsel, said the lower court ruling had drawn a lot of attention.
"The original decision sent chills through a lot of pro-family people around the country," Staver said. "If a federal court could strike down a state marriage amendment, that meant all marriage amendments were on potentially shaky ground."
In the original ruling last year, U.S. District Judge Joseph Bataillon in Lincoln, Neb., held the Nebraska amendment was too broad — and said it deprived homosexuals of participation in the political process.
"The appellate judges rejected the notion that just because a group loses in the political process that they can then claim that they have suffered a deprivation of their rights to participate in the political process," Stovall said.
Bruce Hausknecht, judicial analyst for Focus on the Family Action, said the appeals court affirmed that marriage amendments are "rationally related to legitimate state interests."
"The court said there is a 'rational purpose' behind such amendments, which is 'to steer heterosexual procreation into marriage' — to use the words of the court," he added.
The 8th Circuit also threw out Judge Bataillon's earlier ruling that the amendment somehow singled out homosexuals for punishment.
Nebraska Attorney General Jon Bruning, who brought the appeal, said he's also prepared to defend the law if it is appealed to the U.S. Supreme Court.
A very good 10 days
In Tennessee, meanwhile, justices at the state Supreme Court said a proposed marriage-protection amendment can appear on this fall's ballot.
"The ACLU's goal had been to circumvent the democratic process and get a court to nullify the amendment, to keep the voters from being able to vote on it," said Byron Babione of the Alliance Defense Fund, who represented Tennessee lawmakers in the case.
For nearly two weeks, those trying to promote gay marriage have been rocked backward by stunning court decisions in favor of traditional marriage.
"The same-sex marriage movement must be saying, 'Thank goodness it's Friday,' " Staver said.
Last week, top state courts in New York and Georgia ruled in favor of marriage. Then on Monday, the same court that forced gay marriage onto Massachusetts upheld the right of an initiative protecting marriage to get on the ballot. That victory was spoiled when Massachusetts lawmakers adjourned a special constitutional convention without raising the issue.
Thursday, a judge in Connecticut denied the request of eight same-sex couples to marry. That state already allows civil unions for same-sex couples. The couples plan to appeal, saying they are not satisfied with civil unions.
"It's been a very good last 10 days," Babione told CitizenLink. "Courts are beginning to recognize that there is a genius to the marriage laws that marriage between a man and a woman protects the state's paramount interest in responsible procreation. It's hard to argue that it's irrational."
All of this comes in advance of Tuesday's vote by the U.S. House of Representatives on the federal Marriage Protection Amendment (MPA). Pro-family leaders worry that some representatives who oppose the MPA are going to use these victories as evidence that a federal constitutional amendment is unneeded.
"These are merely little skirmishes in a long war," Bydalek said. "The legal theories have not been exhausted, and the lawsuits have not been exhausted, and eventually a judge, or some appellate court, or perhaps the Supreme Court, may find a federal constitutional right that states have to recognize same-sex marriages.
"We could lose, in the long run, on this issue, unless we pass a federal constitutional amendment which once and for all defines marriage in the United States as between one man and one woman."
Dobson echoed the call for federal action.
"While the trend is definitely moving in the right direction, it's still vital that the House of Representatives pass the federal Marriage Protection Amendment next week," he said, "so that courts without the good sense and judicial temperament of the 8th Circuit are never again in the position to undermine the fundamental building block of civilization.
TAKE ACTION
Contact your U.S. representative today and ask him or her to support the federal Marriage Protection Amendment — the only sure defense of marriage from redefinition.
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(Paid for by Focus on the Family Action.)
