Case Closed? Not Even Close!

National Organization for Marriage

Dear Marriage Supporter,

Emboldened by a spate of radical judicial rulings handing them untimely victories through ill-reasoned decisions, same-sex marriage activists—both here in the U.S. and abroad—have been increasingly trotting out their tired old narrative of "inevitability."

The media and the leaders of the same-sex marriage movement have been so relentless and so consistent in propagating this idea that you probably know it well enough by now to repeat each talking point word-for-word: so-called (and falsely named) 'marriage equality' is a foregone conclusion, we're told, and will soon be the law of the entire realm.

But taking one's view of the marriage debate in America from this narrative is a very narrow-sighted way of looking at things. It is not even like listening to the partisan play-by-play commentary of the home team's radio announcer; it is more like asking the captain of the cheerleading squad at halftime who is going to win.

Of course those who cheer for the goal of marriage redefinition are going to say that the case is closed, that it is inevitable that their agenda will win out in the end: what else would we expect? So in order to gain a better perspective, it is more important for us to take note not of what they are saying, but rather what they aren't saying. Because their silence can speak volumes.

The Biggest News That Wasn't News

"European Court Says No Right to Same-Sex Marriage."

That was the headline from Breitbart News on July 25th. But apart from this, the story of this monumental ruling received little to no media attention. The mainstream media, having long joined the cheerleading squad of the same-sex marriage movement, took their typical approach to stories combatting the narrative: silence.

Sure, it might have gotten some coverage: deep in a webpage side-bar, or buried on page A-17 of a print edition. But we've known for a long time about the media bias on this issue: one study showed that pro-SSM statements are reported in the press at a ratio of 5-to-1 compared with statements supporting true marriage.

Therefore, considering the complicity of the media in the cause to radically redefine marriage and family, we shouldn't take the by-the-way coverage of this case as a sign of the story's unimportance, but of its importance. They don't want you to know about this!

Joseph La Rue, writing at the Alliance Defending Freedom blog, gives a fair summary of the ruling and its importance:

As the debate over the definition of marriage rages across the states, the European Court of Human Rights (kind of like a "Supreme Court of Europe") has decided that the European Convention on Human Rights (kind of like our Constitution) does not require that nations recognize same-sex marriage [emphasis in original].

La Rue notes: "This is a monumental decision, and could have a major impact as our Supreme Court is expected to take up a marriage case in the coming term" [emphasis added].

He explains that the U.S. Supreme Court—including Justice Anthony Kenney—has looked to and cited the European Court on Human Rights in previous decisions.

La Rue gives this explanation of the present decision [emphases in original]:

The Court held by a 14-3 vote that the European Convention on Human Rights does not require countries to recognize same-sex marriages.


One reason the European Court said it reached its decision had to do with the fact that there was no 'European consensus' regarding same-sex marriage. Ten countries recognize it; 37 do not. The Court concluded that it would be better to let the debate continue than to impose a 'one size fits all' solution on all 47 countries in Europe.

Truly, as La Rue notes, it is not surprising that "this ground-breaking decision from Europe has escaped the notice of the mainstream media." But I'd say, rather, that it didn't escape their notice so much as they chose deliberately not to make note of it.

La Rue explains the potential importance of this European case for the United States this way:

[T]his decision supports our argument that same-sex marriage is not a fundamental right. It would therefore be good for our courts to do as the European Court did. Our courts should let the debate continue, and not try to impose a fifty-state solution on the American people.

Of course, our opponents will observe that our courts have shown themselves unwilling to do just that, to let the debate continue. In decision after decision, the trend has been to shut down that debate and impose a radical new orthodoxy from the bench, side-stepping the democratic and legislative processes.

But what our opponents won't make a point of saying is that this trend might be careening toward "a roadblock" and a sudden putting on of the brakes.

Far From "Case Closed"

On Wednesday, a three-judge panel of the 6th U.S. Circuit Court of Appeals heard arguments in cases challenging the legal definition of marriage in four states: Ohio, Michigan, Tennessee, and Kentucky.

It was impossible for the major media outlets to ignore such a widely-impacting story. Thus, the news was picked up, among other places, in The Washington Post and The New York Times.

I will get to what they said in a moment. I want to make note first of all of what they did NOT say.

The major stories on these historic hearings did not point out some of the essential facts that I observed on Wednesday in a statement:

  • While they are not physically present in the courtroom in Cincinnati, the votes of 8.7 million citizens are at stake in this hearing.
  • Voters passed marriage amendments by overwhelming margins in these four states — nearly 8.7 million votes were cast in support of these four amendments, amounting to a combined 65% of the vote cast.

No, you won't find these wholly relevant facts in the articles from the Post and the Times. Both articles do, on the other hand, take great pains to mention the "legal landscape of the last year, in which more than two dozen lower courts and two appeals courts have ruled that gay couples have a right to marry" [SOURCE].

Both articles also trouble to focus on the "caustic questions" from the lone Clinton appointee on the panel, Judge Martha Craig Daughtrey—questions which, the New York Times says "left no doubt where she stood." (It's good to see the matter was not pre-judged or anything!)

But for all their efforts, neither of the reporters for these complicit media engines could evade the major fact about Wednesday's hearings: the case is far from closed... at least with respect to the other two judges on the panel.

The Washington Post journalist was forced to admit what seemed to be the reaction of everyone in the courtroom: "It became clear after three hours of arguments that the panel could become the first roadblock for proponents of same-sex marriage" [emphasis added].

A decision at the Circuit level favoring the right (explicitly upheld in last year's Windsor decision) of states' to define marriage would be a hugely important moment in this debate.

Our opponents have put everything they've got into these court cases, and have derailed every attempt to allow voters to have a say in the matter, because they know that they've run out of places where they can even squeak out a narrow win.

In any event, the 6th Circuit looks poised to deliver a decisive blow to the "inevitability" narrative. Even if the decision doesn't go that way, we can expect a very vigorous and important dissent. And either outcome is important, because the Supreme Court is certain to be weighing in on this matter again, and this decision could be the impetus for that eventuality being sooner rather than later.

"Both Sides Agree" — Not Everyday That Happens!

Yesterday's big headline in marriage news was from The New York Times, and the headline says it all: "Both Sides in Gay Marriage Fight in Utah Agree: Supreme Court Should Hear Case."

We at NOM have been saying that the Supreme Court should, and most certainly will, be taking up this issue in the near future, and have also noted that the Utah case seems one of the best candidates for really testing all of the parameters of the issue.

This week, as the Times explains:

Lawyers for three couples challenging Utah's ban on same-sex marriage said Thursday that they would join with their opponents to urge the Supreme Court to hear their case, even though they recently won an appeals court ruling striking down the law. [...] The unusual move could hasten a final ruling from the Supreme Court on same-sex marriage.

It isn't everyday that "both sides agree" in any legal question connected with this issue, so it is safe to say that this is an important moment in the progress of the debate.

Marriage Supporter, this matter will return before the Supreme Court—that is certain. What remains uncertain is how the Court will vote. It is obvious from the Utah plaintiffs' actions this week that they hope for a victory there. But I think we have reason to hope.

I hope that the 6th Circuit ruling comes down in favor of the millions of voters in the four states who argued their cases this week. I hope that the wisdom of the European Court of Human Rights last month be noted and respected by our own highest court's justices.

But most of all, I hope that ordinary citizens like you continue to stand up and to speak out bravely on marriage. The other side keeps claiming "inevitability" and a certain outcome. We need to show the Justices of the Supreme Court, between now and the time that they reconsider this issue, that the American people still stand divided on the issue of marriage!

Write letters to the editor.

Stage rallies in your hometown or state capitol.

Hold the gay lobby's corporate cronies accountable—(have you joined our Target boycott yet?).

Sign petitions.

Donate to defend marriage.

Get out and vote.


Don't buy the hype of "inevitability" from the other side. Don't feel like the Supreme Court is beyond your power to influence. Each of us can do our part to show that marriage still enjoys deep and wide support throughout our land.

Let's show the American people and the Justices on the bench that there's still a debate to be had on this matter, and hopefully they will come down in favor of letting that debate continue.


Brian S Brown

Brian S. Brown
National Organization for Marriage

Brian Brown

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