The great streak of court victories for gay marriage was broken on Tuesday: A state court in Kingston, Tennessee, became the first to uphold a state ban on gay marriage since the Supreme Court’s decision last year in United States v. Windsor.
The decision in Borman v. Piles-Borman, written by Circuit Judge Russell Simmons, holds that Tennessee does not have to recognize the marriage of two male Tennessee residents who had traveled to Iowa to wed. They sought state recognition because they had decided to divorce—and Iowa won’t permit their divorce unless one is an Iowa resident.
Tennessee’s “anti-recognition law,” which this decision upholds, limits the state's recognition of out-of-state marriages to those between a man and a woman. The decision is, as the judge notes, of limited effect—“the decision of this Court will only be binding on this case and this Court.” In fact, a federal district court in Nashville has already struck down the anti-recognition law, and an appeal is pending before the Sixth Circuit. (District court decisions don't bind other courts, so Simmons was not bound by the federal court's decision, particularly since his court sits in a different district of the Sixth Circuit than the one where the ruling was issued.)
More than two dozen courts in the 14 months since Windsor have struck down laws against gay marriage. Simmons's decision, then, seems to be an outlier; his opinion appears unlikely to start a lower-court stampede in the other direction. But it is worth considering as window into the arguments of gay-marriage opponents.
Seen through that lens, the important thing about Simmons’s opinion is its even tone. He notes that in 1972, the Supreme Court briefly considered a same-sex couple’s challenge to a state marriage law, and dismissed it “for want of a substantial federal question.” Other courts have held that the 1972 case, Baker v. Nelson, is no longer binding because the law has changed—particularly in light of Windsor. In that case, the majority held that the federal government has to recognize valid state same-sex marriages; thus, most subsequent judges have reasoned, the federal question can hardly be seen as “insubstantial.” Simmons, however, argues that Windsor didn’t overrule Baker; indeed, Windsor didn’t even mention Baker.
Simmons goes on to hold that the state’s ban on same-sex marriage is valid. His reasons aren’t very original: Only men and women can procreate. “Biology alone, therefore, provides a rational explanation for Tennessee’s decision not to extend marriage to same-sex couples,” he writes. The right to marry, he agrees, is “fundamental.” Like other opponents of same-sex marriage, however, he insists that same-sex marriage is not “marriage” at all, but something brand-new and strange. “The battle is not whether or not marriage is a fundamental right but what unions are included in the definition of marriage,” Simmons writes.
That truly is the central question. If same-sex marriage is “marriage,” then the “biology” argument takes us nowhere, since marriage is permitted to couples who can’t have children. But if it isn’t “marriage,” it is something scary and new (“newer than cell phones or the Internet,” Justice Samuel Alito said during oral arguments in the Proposition 8 cases).
Distrust of newness is the essence of old-style conservatism. “A spirit of innovation is generally the result of a selfish temper and confined views,” Edmund Burke wrote in his Reflections on the Revolution in France. “People will not look forward to posterity, who never look backward to their ancestors.” The satisfaction of present needs may create future problems, and so should be avoided if possible.