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Same-sex marriage on 35-state trajectory

WASHINGTON (BP) — Legalized same-sex marriage is on a trajectory to become law in 35 states.

With the latest judicial action, a ruling by a federal appeals court, marriage between people of the same sex will be nearly double the number of states prior to the Supreme Court’s assent to appeals court rulings Oct. 6 that struck down state laws limiting marriage to one man and one woman.

Leaders in the effort to protect the biblical, traditional definition of marriage, meanwhile, continued their lament of Americans’ loss of power to an activist judiciary but urged allies not to give up.

The most recent blow to marriage’s meaning throughout history came Oct. 7, when the Ninth Circuit Court of Appeals in San Francisco struck down laws limiting marriage to a man and a woman in two states. The appeals court’s ruling is expected to take effect in three other states in its circuit with similar laws.

The Ninth Circuit’s ruling followed by a day an announcement by the U.S. Supreme Court that legalized same-sex marriage in five states and moved another six states in the same circuits toward gay marriage. In their Oct. 6 orders, the justices denied review of decisions by three federal appeals courts overturning state laws that prohibited same-sex marriage. The high court’s refusal to accept the cases means the lower-court rulings are controlling.

Prior to the actions by the Supreme Court and Ninth Circuit Court, same-sex marriage was legal in 19 states and the District of Columbia.

Andrew Walker, a Southern Baptist public policy specialist, said with sadness the effort to “redefine marriage is perhaps the fastest, most effective social change in our nation’s history. … The furthered erosion or deinstitutionalization of marriage that comes by redefining it will re-wire or re-circuit how we understand family arrangements.”

The Supreme Court’s decision not to review the lower-court opinions means citizens “now have a more diminished role in making important decisions about the meaning of marriage and family,” said Walker, director of policy studies for the Ethics & Religious Liberty Commission (ERLC).

While the high court’s orders leave same-sex marriage “a matter within the states,” Walker wrote in an Oct. 6 blog post, “Even within the states, the signs are discouraging. Increasingly, marriage’s definition is coming from the courts within these states and circuits, rather than through citizens. [The Supreme Court’s action] reinforces the troubling trend that individual states and [their] citizens are left unprotected from the actions of judges that view themselves as Philosopher-Kings.”

Ryan Anderson, a Heritage Foundation marriage and religious freedom expert, urged defenders of traditional marriage to continue to fight in the courts.

“Marriage is too important to allow unelected judges to redefine it without a fight,” Anderson wrote in an Oct. 7 blog post. “Even if the umpires are colluding with the other team, that’s no reason to allow them an unopposed victory.”

Marriage defenders can win, Anderson said, in some appeals courts, possibly the Fifth and Sixth Circuits. If an appeals court upholds state laws barring same-sex marriage, it is expected the Supreme Court would act to settle the conflict between circuits by issuing an opinion on the constitutionality of gay marriage.

“[T]he composition of the Supreme Court might well change for the better before the Court ends up actually deciding the marriage question,” Anderson said.

An ongoing defense of marriage, he said, also should include:

— Explaining to Americans the meaning of marriage and why it is important to the government.

— Urging the protection of religious freedom and liberty of conscience for individuals and organizations that disagree with same-sex marriage.

— Asserting a view of government that enables citizens and elected representatives, not judges, to make policies.

— Taking the “long view” of advocating for marriage “even if law and culture grow increasingly hostile.”

The expansion of same-sex marriage has resulted in a growing clash between the rights of same-sex couples and the religious freedom of individuals and organizations. Photographers, florists, bakers and other business owners who oppose serving in support of same-sex wedding ceremonies are facing penalties for their refusal. The legal conflict raises questions about whether additional legislation is required to protect religious liberty and conscience rights.

In its Oct. 7 opinion, the Ninth Circuit invalidated marriage laws in Idaho and Nevada. Associate Justice Anthony Kennedy delayed enforcement of the ruling in the case of Idaho. It is unknown when the final resolution regarding Idaho’s law will take place. The other states in the Ninth Circuit with marriage laws that appear destined to be overturned are Alaska, Arizona and Montana, according to SCOTUSblog.com.

States affected by the Supreme Court’s Oct. 6 orders are in different stages of response to them.

The latest judicial actions came after a nearly complete judicial sweep by SSM proponents in the last 15 months. Courts have issued more than three dozen opinions in favor of gay marriage since the justices struck down a section of the federal Defense of Marriage Act in June 2013, saying it violated “equal protection” under the Constitution by refusing to recognize same-sex marriages. Though the high court refused to say states could not limit marriage to heterosexual couples, most courts have used the decision as a basis for striking down state laws that define marriage as only between a man and a woman.

Only a handful of decisions by a federal judge and state judges conflict with the pro-gay marriage trend.

Mike Huckabee, former Arkansas governor and Republican Party presidential candidate, warned the GOP he would leave if it did not defend marriage. “I am utterly exasperated with Republicans and the so-called leadership of the Republicans, who have abdicated on this issue,” Huckabee said in an Oct. 7 radio interview with the American Family Association, according to the Christian Post. “If the Republicans want to lose guys like me and a whole bunch of still God-fearing and Bible-believing people just go ahead and abdicate on this issue. And while you are at it, go ahead and say abortion doesn’t matter either because at that point you lose me.”

Same-sex marriage will be one of the topics at the ERLC’s national conference Oct. 27-29 in Nashville. The conference is titled “The Gospel, Homosexuality, and the Future of Marriage.”