Category archives: Marriage

With Contempt, from Attorney General Holder

by Leanna Baumer

April 8, 2014

Since it’s been almost a year since the last appearance of Attorney General Eric Holder before the House Judiciary Committee, Members had no shortage of topics to probe today in an often contentious Committee hearing that lasted close to four hours.

Chairman Bob Goodlatte (R-Va.) opened the hearing with remarks focused on the “extraordinary level of Executive overreach by the Obama Administration”. Members followed up with particular grievances, including IRS targeting of conservative groups and individuals, Administration disregard for statutory requirements in the Affordable Care Act, Justice Department failure to answer countless Congressional requests for information and documents, dismissal of state marriage laws, and the end to enforcement of the federal marijuana ban. 

Importantly for those concerned with the Administration’s ongoing disregard for state marriage laws, Congressman Steve Chabot (R-Ohio) drew attention to troubling remarks made by the Attorney General in late February of this year. In addressing a gathering of state attorneys general, Attorney General Holder had voiced his skepticism of state policies that recognize marriage as the union of one man and one woman, declaring that “I believe we must be suspicious of legal classifications based solely on sexual orientation.”

Remarking on the very unusual step of advising state attorneys generals to disregard constitutional measures enacted by wide-margins of voters, Congressman Chabot asked why the top law enforcement official in the country would urge his state counterparts to abandon their legal obligations (a posture some conscientious state attorneys general such as Colorado’s Attorney General John Suthers have condemned publically). General Holder attempted to deny his use of the particular phrase “suspicious” and offered the qualified response that usually a decision to defend a law “can’t be based on politics or policy.” While appealing words, in practice, the Justice Department’s posture has been one that elevates rank partisanship over fair defense of the law.

In a personal anecdote, Congressman Trey Gowdy (R-S.C.) later brought up the view that bound he and a fellow lawyer together in friendship despite political differences — the profound “hope that the law will trump politics.” He went on to describe the powerful role the rule of law plays in America as “the greatest equalizing force in our country” and “the greatest unifying force in our country.”

Unfortunately, for Members of the Judiciary Committee and more significantly the American public, this Administration’s politicization of the rule of law on many fronts means that the public’s views on marriage — even their ability to simply express those views as participants in civil society — rests on increasingly shaky ground. The Attorney General’s condescension and refusal to answer most Member questions left little of Congressman Gowdy’s “hope” and more mere “politics.”  

Michigan Marriage and the Rule of Law

by Leanna Baumer

March 28, 2014

Regardless of one’s underlying position on what state marriage policy should be, most Americans agree that establishing that policy should be a process rooted in legal and democratic means. Yet, for all the present Administration’s blustering about respect and tolerance for a diversity of viewpoints on marriage, very little of that respect has been extended to existing state policy on marriage or the process by which those views have been enshrined in law.

In the latest move to ignore state marriage law, the Department of Justice (DOJ) has announced it will recognize the relationships of Michigan same-sex couples who obtained marriage licenses in the period between a federal District Court ruling striking down the state’s marriage amendment on March 21st and an emergency stay of the ruling issued by the 6th Circuit Court of Appeals on March 22nd. In the Saturday morning hours between District Judge Bernard Friedman’s Friday night ruling and the subsequent Saturday afternoon stay, several hundred couples were “wed.”

Given the murky legal status of these marriages, Michigan’s Governor Rick Snyder has said the state will not recognize the unions while the state continues its appeal of the District Court ruling at the 6th Circuit Court of Appeals. Michigan Attorney General Bill Schuette has explained repeatedly that his job, regardless of his personal beliefs, is to defend the will of the 2.7 million Michigan voters who voted in 2004 to affirm marriage as the institution it has always been understood to be: the union of one man and one woman.

That deference to the people and the law, unfortunately, has not been replicated by Attorney General Schuette’s federal counterpart. Today’s statement from U.S. Attorney General Eric Holder instead underscores the willingness of the federal government to ignore the will of voters, state law, and the limits of last summer’s Supreme Court ruling in United States v. Windsor. Indeed, Windsor required respect for state policies on marriage — not a new federal mandate for Administratively-imposed same-sex marriage recognition.

A Lone Star Judge vs. 76 percent of the People

by Leanna Baumer

February 28, 2014

On Wednesday, a U.S. district judge in Texas ruled that the state’s law defining marriage as the union of one man and one woman was unconstitutional. District Judge Orlando Garcia’s ruling adds to a growing list of rulings striking down state marriage amendments. Judges in Utah, Oklahoma, Ohio, Kentucky, and Virginia have been all too willing to substitute their individual judgment for the voice of the people on a question that our Constitution leaves to the political process.

District Judge Garcia recycles the faulty reasoning seen in other marriage cases in recent weeks. Specifically, he asserts that Texas has no rational basis for recognizing marriage as the union of a man and a woman, ignoring the state’s argument that marriage should be recognized as such in policy because the state has a legitimate interest in ensuring that a man and a woman who bring a child into the world raise that child as dad and mom. The vast majority of Texans share this historic belief. With Wednesday’s ruling, their right to uphold that ideal has been trampled on as Texas politicians such as Senator Ted Cruz have pointed out.

Judge Garcia chose to overlook the fact that as a class of people, only opposite-sex couples are biologically capable of having children and that as a class, same-sex couples are not. By failing to acknowledge this fundamental difference, Judge Garcia bypasses what this discussion is all about: the understanding of marriage as an institution that brings men and women together to responsibly care for any children their union produces. Texas has no interest in affirming who a person can love; it does have an interest in ensuring that children are raised by their mom and dad. Marriage best accomplishes that purpose and should be recognized as a legitimate and indeed rational interest. 

Chevy Families and “Alternative Lifestyles”

by Leanna Baumer

February 21, 2014

Sochi thrills and spills are fast coming to a close and soon the 2014 Winter Olympics will only be faint memories of two weeks in Russia. Yet, even the casual Olympic television viewer will be left with a profound conclusion regarding family after these games — that the natural definition of marriage has little relevance for family structure or defining what is the “normal” formation of a family.

At least that’s the message that has been stressed over and over by several Chevrolet “Find New Roads” commercials that have run nonstop throughout the games. The advertisements equate heterosexual marriage (deemed “the old love” in “The New Love” Chevy spot) with the “new love” of homosexual unions. In “The New Us,” Chevy portrays a collection of families carrying out daily life, featuring two gay couples with their children alongside a collection of racially diverse heterosexual couples and their children. Intoning that “while what it means to be a family hasn’t changed, what a family looks like has,” Chevy commits an emotionally appealing logical shortcut, conflating what a family looks like with how it is formed.

Historically, natural marriage has been understood as the foundation of family formation because marriage as the union of a man and a woman is the only union that can produce children, the next generation needed to maintain a family. According to Chevy though, such biological distinctions don’t need to have relevance for today and gay parenting patterns can be described as the new “normal.”

Ironically, when the parenting pattern that has been celebrated as the ideal for thousands of years — a married dad staying faithful to his wife and child — was highlighted at this Winter Olympics, the lifestyle was described as an “alternative.” American freestyle skier (and now gold medalist) David Wise holds the distinction of being happily married to his wife of several years, Alexandra, and the father of their daughter. In a sport that celebrates the rebellious, such staid behavior at the tender age of twenty three is deemed “wildly uncool.” Meanwhile, the first television depiction of gay couples during an Olympics received a pass as the “new us.”

That new path to family detached from the natural foundation of marriage is certainly a “New Road” that many have found. Not all new roads are smooth roads though, and only time will tell the consequences of redefining marriage into a genderless institution that fails to consider the needs of children ahead of the desires of adults.

Solitary Sisters Unite?

by Leanna Baumer

February 18, 2014

It’s the first day back to work following Valentine’s Day and the President’s Day holiday. For many women, today means eating the rest of the leftover candy hearts and cursing the selfishness of the single men who caused them to spend another holiday unromantically alone. But, what if the increasingly isolated situation of young women in the United States isn’t entirely the fault of self-absorbed perpetually adolescent 21st century males (as self-absorbed as they may be)? What if it’s partially the conduct of single females that’s driven up the average age of marriage and kept thousands of women apart from a spouse?

That’s the thesis of a new resource out from the Austin Institute for the Study of Family and Culture: The Economics of Sex. This short video primer posits that women offering sex “cheaply” give men little incentive to offer the commitment of marriage in exchange. Supply and demand apply to the relationships between the sexes just as much as in any other category of our market-driven world, the Austin Institute scholars explain.

As any serially single woman can tell you, more women than men want to start a serious relationship in pursuit of marriage. But if most single females are willing to offer their bodies to men with few conditions, men won’t have to look far for pleasure with no expectations.

What’s a woman to do then? Realize the power that she possesses in controlling access to her body, suggests the research team. She and her sisters might collaborate to require serious commitment from men, ideally the threshold of marriage, before giving themselves physically. Were women to place a higher value on sex, we would likely see women getting more of the commitment they desire out of a relationship and many fewer solitary Valentines. 

Renewing Love on Valentine’s Day

by Nathan Oppman

February 14, 2014

Valentine’s Day is full of romance and love for many Americans and it is a beautiful thing. The thought of that special person can send sparks flying. Hearts, roses, and chocolates abound. Young love blossoms. Sadly, these scenes of romance are often a façade for a culture obsessed with an emotional high rather than a selfless love. When the day ends the beauty of the emotional romance is gone, replaced by the ugly reality of shallow relationships. Real romance is not a state of eternal bliss but a commitment to love, sacrificing for the good of the other. How can we hold onto love beyond that February 14th feeling? With so few cultural factors that encourage true romance and love it is helpful to use the Valentine’s Day holiday as a reminder of what love truly looks like. I could give a hundred reasons why marriage is good for you, but those are simply side benefits to following God’s plan for love. Here are three things every Christian husband should do this Valentine’s Day to renew a lasting love and romance:

  1. Remember that you are to love your wife like Christ loved the church. Enough to bleed for her and enough to die for her. Enough to be separated from His Heavenly Father and to become sin for her. I am to love my wife when she sins against me. I am to nurture her, cherish her, and care for her. I am to spend myself for her because I love her and because Christ showed me how.
  2. Remember that my love for her is not conditional on feelings. Feelings are fickle. They change but my love for my wife can shine brighter even when feelings wane. Choosing to love often brings feelings with it but feelings are not the gauge of love. I want my wife to know that “for better or for worse” wasn’t just a cliché phrase but a life-long promise.
  3. Remember to do her good. It can be easy to do good to your significant other while dating. But after a few years of marriage, it may require a little effort. Thinking of ways to do her good involves not just gifts but understanding her needs on both a personal and spiritual level. Bearing your spouse’s burdens can be a challenging and fulfilling task, but it is well worth the effort.

I love my wife. She loves me. I still consider myself a newlywed even though I have been married for well over two years. We still act like romantics, we still hold hands. I still kiss her every morning when I leave for work and she greets me with a kiss when I come home. But these are not the deeds that lead to love they are expressions of it. I have chosen to love my wife. Loving my wife, regardless of feelings, with a desire to do her good at all times is a difficult task. But it is a task I have been commanded to pursue and one I promised, on my wedding day, to perform until death. Along with the chocolate and the kisses, may we all renew our commitment to make the rest of “‘til death do us part” a beautiful thing.

Law and Disorder

by Leanna Baumer

February 11, 2014

Over the weekend, Attorney General Eric Holder announced that the Department of Justice (DOJ) will now recognize any same-sex couple as married for DOJ purposes, regardless of whether their state of residency recognizes their union. DOJ’s guidance officially published Monday mirrors similar announcements made by other federal agencies in the months since the Supreme Court ruling in United States v. Windsor. In these memos, agencies have adopted rules moving beyond the deference to state laws demanded by Windsor and towards a new federal standard that equates same-sex unions with natural marriage.  

While scholars continue to criticize the Windsor ruling for its faulty reasoning and conclusions about the motivation for seeking to protect natural marriage in public policy, the legal framework of Windsor does require the federal government to recognize same-sex unions in the 17 states with laws recognizing such relationships. What Windsor does not require is federal action to undermine and upend the policy in the 33 other states that define marriage as the union of one man and one woman.

In fact, the Majority in Windsor reasoned that a key fault with previous federal policy on marriage was that it caused inconsistent legal recognition of marriage in states, with state law and federal law coming to differing conclusions about the status of a same-sex couple. Yet, now DOJ and other rogue agencies are constructing the “contradictory marriage regimes” that “[diminish] the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect” and that were condemned by the Court.

The current federal posture allows some couples to live as married for many federal purposes while state law continues to view them as unmarried for state purposes. The DOJ’s announcement yesterday continues this confusion and perpetuates the very reality Windsor condemned.

The ultimate irony of this weekend’s announcement came not just from the substance, but also the timing.  While the Administration trumpeted the need for respect, tolerance, and deference to diversity in the context of Russian laws governing marriage, the Administration decided respect, tolerance, and deference to differing opinions on marriage was not actually important back home. Rather than honoring the legal boundaries now at work in the post-Windsor world, the Department of Justice has decided that shutting down democratic debate over marriage matters more than fidelity to the rule of law. 

Marriage-Minded Community: The Wide Scope of New Research

by Avery Pettway

January 28, 2014

A recent study out of Harvard University indicates that children who are raised by intact families have greater social mobility than their single-parented peers. Moreover, negative outcomes are not restricted to the children of these single-parent households. As Brad Wilcox writes in his Slate article, the rates of single-parenthood at the community level have been shown to impede the mobility of everyone, not just the families in distress. If we are to break the cycle of single-parents and improve economic situations for all, it is crucial that married couples do what they can to foster a culture of marriage in their communities. Read more here.

Why Do Courts (and the Media) Ignore Federal Precedent on Marriage?

by Peter Sprigg

January 16, 2014

Advocates for changing the fundamental definition of marriage as the union of a man and a woman in order to include homosexual relationships have been encouraged by two recent decisions by federal district court judges.

On December 20, Judge Robert J. Shelby ruled that Utah’s state constitutional amendment defining marriage as the union of one man and one woman violates the U.S. Constitution. On January 14, Judge Terence C. Kern said the same thing about the Oklahoma marriage amendment.

However, one odd aspect of both rulings is their failure to cite one of the most relevant precedents regarding the constitutionality of state definitions of marriage as a male-female union.

Only two federal appellate courts have ever ruled on the constitutionality of a state law defining marriage as the union of a man and a woman. One was the U.S. Court of Appeals for the Ninth Circuit, which in 2012 ruled (on narrow grounds specific to California) that California’s marriage amendment “Proposition 8” was unconstitutional.

However, in one of two major decisions on marriage in 2013, the U.S. Supreme Court vacated the Ninth Circuit ruling, on grounds that the proponents of Proposition 8 had lacked proper standing to appeal a district court decision. (Liberal state officials had refused to defend their own constitution at all.)

With the Ninth Circuit’s ruling having been effectively wiped off the books, the only remaining federal appeals court precedent involves a challenge to Nebraska’s marriage amendment. In that case, too, a district court judge, Joseph F. Bataillon, ruled in 2005 that the amendment was unconstitutional.

However, a year later, a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit overturned Judge Bataillon’s decision and upheld the Nebraska amendment. This 2006 decision thus remains the highest federal court ruling with a written opinion on state definitions of marriage as one man and one woman.

Yet oddly, neither Judge Shelby in Utah nor Judge Kern in Oklahoma saw fit to even mention this decision. Neither judge’s district is in the Eighth Circuit (both are in the Tenth), so the Bruning case is not binding upon them — but given the relative dearth of such cases that have reached the federal appellate level, it seems odd that it not be mentioned at all.

Below are some excerpts from the opinion, written by Chief Judge James B. Loken:

Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006)

. . .

The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in “steering procreation into marriage.” By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws “encourage procreation to take place within the socially recognized unit that is best situated for raising children.” The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a “responsible procreation” theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. See Hernandez v. Robles [New York, 2006]; Morrison v. Sadler, [Indiana, 2005]. Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State’s justification “lacks a rational relationship to legitimate state interests.” Romer, 517 U.S. at 632.3

The district court rejected the State’s justification as being “at once too broad and too narrow.” But under rational-basis review, “Even if the classification … is to some extent both underinclusive and overinclusive, and hence the line drawn … imperfect, it is nevertheless the rule that … perfection is by no means required.” Vance v. Bradley (1979). Legislatures are permitted to use generalizations so long as “the question is at least debatable.” The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature — or the people through the initiative process — may rationally choose not to expand in wholesale fashion the groups entitled to those benefits. “We accept such imperfection because it is in turn rationally related to the secondary objective of legislative convenience.” [Vance].

. . .

Appellees argue that § 29 [the marriage amendment] does not rationally advance this purported state interest because “prohibiting protection for gay people’s relationships” does not steer procreation into marriage. This demonstrates, Appellees argue, that § 29’s only purpose is to disadvantage gay people. But the argument disregards the expressed intent of traditional marriage laws — to encourage heterosexual couples to bear and raise children in committed marriage relationships.

. . .

In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson (1972), when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed “for want of a substantial federal question.” (Emphasis added.)

. . .

We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.

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