Who will get to decide the definition of marriage?

The 6th U.S Circuit Court of Appeals in Cincinnati last week held a marathon three-hour session to hear six marriage cases out of Michigan, Tennessee, Kentucky, and Ohio. In each case, lower courts had struck down state laws affirming marriage between a man and woman or forced states to recognize marriage licenses granted to same-sex couples by other states.

Themes of tradition and child rearing arose, as they have before. But in a new and different twist, one judge thought the issue was for the legislature and voters to decide, not the courts.

“I would have thought the best way to get respect and dignity is through the democratic process, not forcing one’s neighbors, co-employees, friends to recognize that these marriages or this status deserves the same respect as the status of a heterosexual couple,” Judge Jeffrey Sutton said.

But the attorney for a lesbian couple from Michigan who have adopted children said

the “wait and see” approach was not a rational basis for denying marriage rights to her clients.

“No other group in society has to pass a parenting competency test before they’re allowed to marry,” attorney Carole Stanyar said. “There are groups of parents in society that we know tend to have poor outcomes, on average. Parents who have low incomes, parents with lower educational levels, parents who may have children, get divorced, and want to marry again—there’s no competency test for these parents, but we don’t bar them from marrying or having children.”

Stanyar argued that “doctrinal development” drives contemporary understanding of marriage, and that’s what judges should do, too. Sutton expressed skepticism, though.

“When you say ‘doctrinal development,’ is it fair to paraphrase that to mean reasoning that’s inconsistent with other lines of precedent? Isn’t that what you mean by a doctrinal development?” he asked. Stanyar called doctrinal development an evolution of concepts. She needs that argument to overcome the legal basis for rejecting same-sex marriage at the state level.

The attorney for the residents of Michigan who voted for traditional marriage argued for democratic process in his opening statement.

“It is a fundamental premise of our democratic system that the people can be trusted to decide even divisive issues on decent and rational grounds. And that’s what this case is about. It’s about who gets to decide what the definition of marriage is, not what that definition must be,” Aaron Lindstrom said.

Lindstrom pointed out the state does not regulate friendships, but the reason the state regulates marriage is because of children, who are only produced by heterosexuals. It’s not much of a burden for the state to show that defining marriage as between one man and one woman is a rational state interest.

Sutton seemed to agree. Judge Debra Cook didn’t seem to buy into fundamental right of gays to marry, either. But the third judge, President Bill Clinton-appointee Martha Daughtry, leaned the other way. Of all the appeals courts to hear this issue, the 6th Circuit seems more likely to uphold traditional marriage in a 2 to 1 decision. The 10th and 4th circuits have already found traditional marriage rules unconstitutional. And last week, Utah filed a petition for review with the U.S. Supreme Court to look at a lower court ruling striking down its marriage amendment. Other states will follow with their own appeals.

So a split among the circuits will exist if the 6th Circuit rules in favor of letting voters decide, and that could make the Supreme Court take up the case sooner.