Just days after the 6th U.S. Circuit Court of Appeals affirmed the right of states to define marriage as one man and one woman, the 5th U.S. Circuit Court is being urged to affirm the decision, because if it doesn't, states might not even be able to regulate the "species" of marriage partners.
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"If 'marriage' means fulfilling one's personal choices regarding intimacy, as the appellants insist, it is difficult to see how states could regulate marriage on any basis," said a friend-of-the-court brief filed in a Louisiana case. "If personal autonomy is the essence of marriage, then not only gender, but also number, familial relationship, and even species are insupportable limits on that principal and they all will fall.
"This is not just a slippery slope on which the appellants wish to set us, it is a bottomless pit into which they desire to throw us. It is clearly within a state's right to define marriage between and man and a woman when that licensing restriction passes rational basis review."
The warning isn't new.
It was in 2008 when the nation was in the midst of a series of more than 30 state elections in which voters chose to affirm traditional marriage that the California Supreme Court, on its own initiative, created "same-sex marriage" in the state.
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In a dissent from that opinion, State Supreme Court justice Marvin Baxter said: "The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy. … Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous.
"Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law."
"Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority's analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?"
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The case developed when voters in Louisiana, by a 78 percent to 22 percent margin, defined marriage as the union of one man and one woman. Homosexual activists sued, but the law was affirmed at the district court level by Judge Martin C. Feldman, who said the state was under no constitutional obligation to recognize same-sex marriage.
The brief explains: "If 'marriage' means whatever a political activist, a cherry-picked plaintiff, or an appointed judge wants it to mean, it means nothing. If it has no fixed meaning, it is merely a vessel for a judge's will. It is used as a subterfuge for judicial legislation. And as Montesquieu observed: 'There is no greater tyranny than that which is perpetrated under the shield of law and in the name of justice.'"
The filing represents tens of thousands of churches and ministries including more than 3 million members in the United States.
"Same-sex attracted individuals have never lawfully been forced to attend different schools, walk on separate public sidewalks, sit at the back of the bus, drink out of separate drinking fountains, denied their right to assemble, or denied their voting rights. The legal history of these disparate classifications, i.e., immutable racial discrimination and same-sex attraction, is incongruent. Yet, courts continue to mistakenly draw upon this incongruence as the basis for what they now deem 'marriage equality,'" the brief says.
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"The appellants wish to replace the morality of the Judeo-Christian tradition on which our country was founded with the trendy, relativist morality of political correctness."
Another brief, from the Alliance Defending Freedom, outlines the benefits to society of the traditional family of a married mother and father and their children.
"Man-woman-marriage laws substantially further the state's interest in linking children to both of their biological parents. Therefore, those laws easily satisfy the deferential rational-basis standard that applies here," the brief says.
"The people of Louisiana – and every state – should continue to have the freedom to affirm marriage as the union of a man and a woman in their laws," said ADF Senior Counsel Byron Babione. "The district court in this case was right to conclude, as the U.S. Supreme Court did in its Windsor decision last year, that marriage law is the business of the states. States that choose to affirm marriage as a man and a woman have vital reasons for doing so."
Headed for Supreme Court?
WND reported last week a three-judge panel of the 6th U.S. Circuit Court of Appeals affirmed the rights of voters in four states – Kentucky, Michigan, Ohio and Tennessee – to define marriage as the union of one man and one woman.
The decision followed a long list of federal court decision that have adopted the premise that "equality" of marriage means there is no difference between the sexes.
The U.S. Supreme Court recently had refused to take on any same-sex marriage cases, allowing the movement to expand into about 30 states, but the 6th Circuit decision may change that, according to analysts.
Mat Staver, chairman of Liberty Counsel, which has fought on behalf of traditional marriage, said, "With a divide in the appeals court rulings, the Supreme Court will likely take up the issue."
Previous rulings from the high court on the issue have found that the institution is necessarily defined as the union of one man and one woman. In 1942, it said marriage is "fundamental to the very existence and survival of the race." In 1888 it ruled, "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."
Staver said marriage "is not merely a creation of any one civilization or its statutes, but is an institution older than the Constitution and, indeed, older than any laws of any nation."
The 6th Circuit said no federal judges should be making such a decision.
"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, 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 Sixth Circuit."
The pro-homosexual Marriage Equality organization called the ruling "out of step with the decisions of 40 other courts."
The organization said states as diverse as "Oklahoma, West Virginia, and Utah" recently have "embrace[d] marriage equality."
But the organization did not note that a vast majority of the states that have "embraced" same-sex marriage have done so largely by judicial decree, after voters in many of those states specifically chose to define in their laws or even constitution marriage as one man and one woman.
Before federal judges stepped in, the wave of state affirmations of traditional marriage was virtually unstoppable, with victories in 31 of 31 elections.
The 6th Circuit said: "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. ... One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children."
Traditional marriage logical
And the judges wrote: "Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. ... People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. 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. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues."
There is a logic behind traditional marriage, they said.
"What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the states created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the states of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the states to retain authority."
Circuit Judge Jeffrey Sutton, described by USA Today as one of the Republican Party's most esteemed legal thinkers and writers, issued the 42-page decision. Deborah Cook concurred.
Sutton noted a one-sentence Supreme Court ruling from 1972 also "upheld the right of the people of a state to define marriage as they see it."
The result of the "gay marriage" campaign already is being felt across America, where business owners are being ordered by courts to violate their religious faith regarding the Bible's characterization of marriage, or be fined for not doing so.
They were fined $13,000 and ordered to start serving same-sex clients by the courts in New York after a lesbian couple wanted to use the Giffords' farm for their "wedding," and were refused.
"We have decided not to hold wedding ceremonies at all and we are not going to hold them on the farm until we are allowed to choose who we contract with," Cynthia Gifford told WND. The couple, who are devout Christians, hired an attorney with Alliance Defending Freedom, which specializes in religious liberty cases.
Their lawyer, James Trainor, said the state of New York is stomping all over the First Amendment rights of Christian business owners.
"The end result of it, if a state agency is compelling them to host these ceremonies, it’s a form of compelled speech where the state is saying 'you must do this' and a casual observer (of the ceremony) would think 'oh they must believe in this' when in fact they don't," he said.
They are not the only Christians in the bull's-eye.
Jack Phillips owns and operates Masterpiece Cakeshop in Lakewood, Colorado, and has been in business since 1993. He pours his creative spirit into each cake, which he considers a form of artistic expression.
Two local men approached him in 2012 and asked for a wedding cake, which Phillips said was against his conscience. He told them he had no problem making them birthday cakes, cookies, brownies, shower cakes – anything but a wedding cake, which he believes should be only for a man and a woman.
"The most important thing I think about when I wake up and go to work is I want to know that what I'm doing is pleasing to Him," Phillips told CBN News in a recent interview. "I want to honor Him because that's the most important thing."
The Colorado Civil Rights Division ordered him to reverse his policy, educate his employees on how to serve all clients equally and submit quarterly compliance reports to make sure he has fully removed his religious views from his business decisions.
Here's a list of recent cases in which people of faith have been targeted by homosexual activists:
- New Mexico Christian photographers Jon and Elaine Huguenin were sued by two lesbians under the state’s "sexual orientation" law after declining to photograph the lesbians’ "commitment ceremony."
- The Ocean Grove Camp Meeting Association in New Jersey, was convicted of "discrimination" after two lesbians, Harriet Bernstein and Luisa Paster, decided to hold their commitment ceremony on the Methodist-run association's popular family friendly boardwalk. After that, Ocean Grove quit the wedding-hosting business.
- The Aloha Bed & Breakfast in Hawaii, a Christian business, was forced to "accommodate" two Southern California lesbians after a judge ruled the B&B violated state law when the owner told Taeko Bufford and Diane Cervelli she wasn’t comfortable having them stay together in her home due to her religious beliefs. Aloha has since been ordered by the state "to provide a room to any same-sex couple that wishes to stay there."
- In Illinois, Christian B&B owners Jim and Beth Walder are being sued by homosexual activist Todd Wathen, who demands monetary damages, attorneys' fees and "an order directing [the Walders] to cease and desist from any violation" of the state’s Human Rights Act.
- Vermont’s Wildflower Inn paid a settlement and shut down its wedding reception business after the ACLU won a $10,000 civil penalty for two lesbians. The settlement also requires the inn’s owners to place $20,000 in a charitable trust for the lesbians.
- Oregon's "Sweet Cakes by Melissa" bakery shut down after declining to bake for a "gay wedding."
- The owners of Indiana's "Just Cookies" were charged with "discrimination" under the city’s "sexual orientation" law for refusing to fill a special order for "rainbow cookies" for an LGBT group.
- Iowa's "Victoria’s Cake Cottage," whose owner Victoria Childress refused to provide a wedding cake for a homosexual couple out of "convictions for their lifestyle."
- Oregon’s "Fleur Cakes," joined "Sweet Cakes" in refusing to bake a wedding cake for a same-sex couple and is being boycotted by homosexual activist groups.
- Washington state’s "Arlene’s Flowers," whose owner Barronelle Stutzman declined to provide flowers for the wedding of a same-sex couple who had long frequented her shop, faces two lawsuits after refusing to fill an order because of her "relationship with Jesus Christ."
- Texas’ "All Occasion Party Place," a Fort Worth venue, refuses, on religious grounds, to rent out a banquet hall for same-sex wedding receptions.
- A Christian T-shirt maker in Kentucky was targeted by the Lexington-Fayette Urban County Human Rights Commission for refusing to print "gay pride" designs for a local homosexual group.
- Chris Penner, owner of the Twilight Room Annex bar in Portland, was fined $400,000 under the Oregon Equality Act for excluding transsexual men who, dressed as women, had been alienating other customers by using the women’s restroom. According to the Seattle Times, 11 people – calling themselves the "T-girls" – "will get the money, with awards ranging from $20,000 to 50,000."
- The Catholic Church was forced to shut down successful adoption agencies in several states because it opposes adoption by homosexual couples.
- Christians have been kicked out of college counseling programs because they oppose homosexuality and therapists are prohibited by law from helping young people overcome unwanted same-sex attractions.