Trio of States Sees Courts Restrain Activism, Rule for Traditional Marriage

by Fred Jackson, Allie Martin, and Jody Brown
January 20, 2005

(AgapePress) - First it was Louisiana. Then it was Florida. And now Indiana has joined in. All three states this week have seen their courts consider the issue same-sex "marriage" -- and come down on the side of traditional marriage. Family advocates are cheering the decisions, saying they reflect the proper role of the judiciary in America.

Earlier today (January 20), the Indiana Court of Appeals let stand a state law prohibiting the Hoosier State from recognizing homosexual marriage -- including those that may have taken place in states where same-sex unions are legal, such as Massachusetts. In a unanimous decision, the court said homosexual couples have no constitutional right to marry, and that the proper forum for the plaintiffs to bring the issue up is the state's General Assembly, not the courts.

The Indiana Civil Liberties Union had filed the lawsuit on behalf of two homosexual men who entered into a civil union in Vermont in 2000 then returned to Indianapolis where they challenged the state law limiting marriage to a man and a woman. Today's decision may be appealed to the Indiana Supreme Court, which could disagree with the ruling. Meanwhile, Republicans in the General Assembly say they will press on with their plan for a constitutional amendment banning same-sex marriage.

On January 19, a federal judge in Florida upheld the federal Defense of Marriage Act (DOMA), which allows one state to reject a same-sex marriage granted in another state. In his decision, Judge James Moody declared that Florida is not required to recognize or apply Massachusetts' same-sex marriage law because it clearly conflicts with Florida's legitimate public policy of opposing such marriages.

Moody went on to say that adopting the plaintiff's rigid and literal interpretation of the Constitution's full faith and credit clause would "create a license for a single state to create national policy."

And on January 18, the Louisiana Supreme Court reinstated an amendment to the constitution that defines marriage as between a man and a woman -- an amendment that 78 percent of voters had approved in mid-September. But in early October, a state district judge tossed out the constitutional ban on homosexual marriage because, in his opinion, it covered not only same-sex marriage but civil unions as well -- a violation of the state requirement that an amendment cover only one subject.

Now the Louisiana Supreme Court has found that "each provision of the amendment is germane to the single object of defense of marriage and constitutes an element of the plan advanced to achieve this object." As a result of the high court's ruling, the amendment is now in the Louisiana constitution.

In Louisiana
So far, 17 states have amended their constitution to recognize marriage as only between one man and one woman. An attorney with the Alliance Defense Fund says this week's decision in the Bayou State, which reversed a lower court ruling that had struck down a voter-approved amendment, could have a far-reaching effect. Attorney Mike Johnson explains what that could mean for other states that recently approved marriage amendments defining and protecting marriage as between one man and one woman.

"Eight of the other eleven states that ratified their own marriage amendments [last Fall] took a very similar, if not identical, approach to Louisiana's amendment when they passed their own," Johnson says, noting that challenges to those amendments have already been brought to the courts in four of those states. "This ruling [in Louisiana] is the first at a state supreme court level to address the issue -- and we think it will be very important to the outcome of those other cases."

The ADF attorney says, like the case in Louisiana, the lawsuits filed against marriage amendments in other states using the single-subject argument are on "shaky ground."

Another pro-family attorney, Steve Crampton of the American Family Association Center for Law & Policy, recalls the outrage registered by marriage traditionalists -- not to mention judicial purists -- when State District Court Judge William Morvant ruled that the Louisiana amendment was flawed. Crampton was among many disturbed in early October by Morvant's judicial activism.

"For too long, efforts to protect the family have been thwarted by activist judges," Crampton says. "We applaud the Louisiana court for deferring to the will of the people."

Tony Perkins

So does Tony Perkins, president of Family Research Council. A former state representative in Louisiana, Perkins says the Supreme Court's ruling delivers reassurance that the people's voice can and will be heard.

"Instead of ignoring the will of the people, the Court affirmed both its respect for the institution of marriage, and the overwhelming support the people in Louisiana have for the Defense of Marriage Amendment," Perkins states. "It is now evident that this legislature understands, and the people understand, that both 'civil unions' and same-sex 'marriage' undermine the institution of marriage and jeopardize the future of our children."

Tom Minnery of Focus on the Family Action sees the Louisiana ruling as a demonstration of the proper constitutional role of the judiciary -- that is, one that does not usurp the rights of the people or their elected representatives. "The people of Louisiana are fortunate that their Supreme Court looked to the law -- and not to a liberal political agenda," Minnery says. "[N]ot all residents of all states are so fortunate, as the people of Massachusetts know all too well."

In Florida
Minnery also says the federal court in Florida "admirably practiced judicial restraint" in its decision upholding both that state's and the federal Defense of Marriage Act.

"[T]his dismissal [of challenges to DOMA] demonstrates a proper understanding of the scope of the courts -- to interpret the laws enacted by the people and their representatives ... and not to dictate a radical social experiment," he says. He adds, however, that it is unfortunate that marriage in any jurisdiction "is only one judge away from being ruled unconstitutional."

Mat Staver

Because of these challenges in Florida and Louisiana, Minnery says the U.S. Constitution needs to be amended to protect the traditional view of marriage. He calls such an amendment the "only surefire way to prevent activist judges from rewriting centuries of tradition and law" governing the institution of marriage.

The president and general counsel of Florida-based Liberty Counsel could not agree more. Mat Staver, whose legal group filed motions in the case, says although the ruling was solid, a federal constitutional amendment protecting marriage is badly needed.

"We should not have to depend upon the decision or the pen of a federal judge to determine whether ... marriage is constitutional," he says bluntly. "We shouldn't have to scour the Internet hour by hour, looking for headlines, to determine whether ... some judge somewhere at some time ruled marriage unconstitutional."

The nation, says Staver, must have a federal constitutional amendment that would "once and for all put to rest this issue and ... preserve marriage."