Defenders of traditional marriage won a series of seven court victories in July, belying concern—at least for now—about “activist judges.”
In a 4-2 decision, New York’s highest court denied a suit for same-sex marriage, stating that such unions have no historical basis and are not a fundamental right guaranteed by the state constitution.
“Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like,” Judge Robert Smith wrote. Smith also ruled that while “racism has been recognized for centuries” as unjust, “the idea that same-sex marriage is even possible is a relatively new one.”
The wording of the decision, in particular, pleased marriage-protection advocates.
“That almost could have been [taken] verbatim from our ‘friend of the court’ brief,” said Tony Perkins, president of the Family Research Council. “Because that’s what we argued, that you cannot separate the well-being of children from marriage.”
Elsewhere, the Eighth Circuit Court of Appeals upheld Nebraska’s 2000 constitutional amendment forbidding same-sex marriage. Since a federal court had challenged Nebraska’s ban on the basis of rights guaranteed gays and lesbians in the Constitution, the case had repercussions for the 20 other state amendments passed since 1998. On July 14, the Eighth Circuit Court ruled that Nebraska’s amendment was neither too broad nor discriminatory.
“If [gay-marriage activists] cannot pick off Nebraska,” said Jordan Lorence, senior counsel for the Alliance Defense Fund, “I think it’s very unlikely that they’ll be able to strike down any of the amendments.”
Additionally, the highest courts in Tennessee and Massachusetts allowed pursuit of state marriage amendments to continue. Georgia’s Supreme Court also upheld an amendment passed in 2004, and a judge in Connecticut denied a suit for same-sex marriage. However, the U.S. House vote on the Marriage Protection Amendment fell far short on July 18 of the needed two-thirds majority.
Matt Foreman, executive director of the National Gay and Lesbian Taskforce, dismissed the import of the New York decision. “It is so badly reasoned, so inarticulate,” he said, “that no judge in any other state that is thinking seriously about the issue will quote it.”
Foreman pointed to cases ahead in which gay and lesbian plaintiffs may win the right to marry. Courts in California and New Jersey, for instance, are expected to rule in favor of same-sex marriage soon.
But the Washington Supreme Court’s surprise decision on July 26 may swing these courts the other direction. Echoing reasoning from the New York case, Washington’s highest court stated that heterosexual marriage “furthers procreation” and “furthers the well-being of children.”
“There’s some pressure now on [the California and New Jersey courts] that they did not feel three months ago,” Lorence said. “Do they join what is increasingly looking like a one-court parade with Massachusetts, or join all the other courts that have gone the other way?”
Currently, 39 states ban same-sex marriage, either by amendment, statute, or both.
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Related Elsewhere:
News elsewhere includes:
Wash., New York say no to gay marriage | Nearly three years after the historic Massachusetts high court ruling to legalize same-sex marriage, the threat that a legal domino effect would spread gay marriage to other states has failed to materialize. (Stateline.org, August 3, 2006)
For Some Gays, a Right They Can Forsake | To these activists, the fight for gay marriage is the mirror image of the right-wing conservative Christian lobby for family values and feeds into the same drive for a homogeneous, orthodox American culture. (New York Times, July 30, 2006)
Court reinstates Nebraska’s same-sex marriage ban | A federal appeals court found today that Nebraska’s ban on gay marriage was not punitive toward homosexuals — an argument which was used to get the law repealed previously in lower courts. (Associated Press, Jul 14, 2006)
Another Setback for Same-Sex Marriage | With Washington State ruling to uphold its ban, gay-marriage activists are racking up defeats across the country (Time, July 27, 2006)
Christianity Today‘s full coverage of same-sex marriage and other marriage issues is available on our site.
