by FRC Media Office
July 1, 2015
FRC’s Peter Sprigg appeared on CBN News this morning to discuss what will happen to religious individuals and institutions who continue to stand for marriage.
FRC’s Peter Sprigg appeared on CBN News this morning to discuss what will happen to religious individuals and institutions who continue to stand for marriage.
Last week, the Supreme Court overturned the votes of more than 50 million people in 31 states concerning same-sex marriage, finding, instead, a constitutional “right” for same-gendered persons to marry. They blithely dismissed the will of the voters in order to find this “right,” rejecting the Tenth Amendment’s affirmation that those things not specifically articulated in the Constitution as within the province of the federal government belong to the states and the people.
In a ruling on the shaping of congressional districts, issued today, Justice Ruth Bader Ginsburg – a leading advocate of a constitutional “right” for same-sex partners to marry – wrote the following: “The animating principle of our Constitution [is] that the people themselves are the originating source of all the powers of government.”
Affirming federalism is not a matter of whim; it is foundational to our system of government, even our existence as a nation. Yet, troublingly, this subjective application of the Founder’s political philosophy seems to be the pattern of our current Supreme Court.
Homosexuality is an “Immutable” Characteristic
“Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.” Opinion of the Court, p. 4
Wrong: Homosexuality is NOT an immutable characteristic. This is documented copiously and is demonstrated anecdotally by everyone from Rosaria Butterfield to Chirlane McCray, the wife of New York Mayor Bill DeBlasio.
As reported in an amicus brief for the Family Research Council, an examination of just some of the complaints that have been brought to date challenging state marriage laws reveals that dozens of the plaintiffs seeking to marry someone of the same sex previously were married to someone of the opposite sex. Notwithstanding their (presumed) sexual orientation, they were issued a license to marry. It might be argued that at the time of their previous marriage, they were not homosexual. But that response creates a new problem. If they were heterosexual then, but are homosexual now, then their sexual orientation could not be said to be immutable. – FRC Senior Fellow Peter Sprigg, The Wrong Argument Against Traditional Marriage, April 27, 2015
“Changing Understandings of Marriage”
“The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time. For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman … Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.” Opinion of the Court, pp. 6-7
Wrong: The nature of marriage as the union of one man and one woman has never changed. Legal matters attendant to marriage (women’s property rights, arrangements by parents, etc.) have changed, but the nature of marriage has itself never changed. Kennedy’s argument says, in essence, that because a car now has airbags, it should be called an airplane. Incorrect: It remains a car, even if improvements have been made to its engine, its safety, etc.
These aspects of marriage—the complementarity of male and female, and the irreplaceable role of male-female relations in reproducing the human race—are part of the original order of creation, and are evident to all human beings from the enduring order of nature. These common elements of marriage are at the heart of our civil laws defining and regulating marriage. Therefore, people of all cultures and religions—including those who lack faith in God, Christ, or the Bible—are capable of participating in the institution of marriage. – Andreas Kostenberger, Ph.D., “The Bible’s Teaching on Marriage and Family”
Homosexuality is analogous to race
“When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed. Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is ‘one of the vital personal rights essential to the orderly pursuit of happiness by free men’.” Opinion of the Court, p. 8
Wrong: Race is immutable and benign. It is irrelevant to with one’s character or conduct. Homosexuality is not immutable and those who practice same-sex intimacy are engaging in behavior that has intrinsic moral content.
One of the four criteria for defining a classification such as sexual orientation as suspect—which in turn subjects laws targeting that class of people to the highest burden of proof—is that the group in question share an immutable characteristic. The immutability of sexual orientation is hardly a settled matter—just ask Anne Heche (the former partner of celebrity and lesbian Ellen DeGeneres who has now affirmed her heterosexuality). - Margaret Talbot, “Is Sexuality Immutable?” The New Yorker, January 25, 2010
Marriage is a matter of “individual autonomy”
“A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Opinion of the Court, p. 13
Wrong: While individual autonomy in terms of “personal choice” is “inherent in the concept” of marriage, marriage is not strictly about personal volition. It is a social institution designed for procreation and child-rearing in a complementary household in which a child benefits from the influence of differently-gendered parents.
Marriage is based on the truth that men and women are complementary, the biological fact that reproduction depends on a man and a woman, and the reality that children need a mother and a father. Redefining marriage does not simply expand the existing understanding of marriage; it rejects these truths. Marriage is society’s least restrictive means of ensuring the well-being of children. By encouraging the norms of marriage—monogamy, sexual exclusivity, and permanence—the state strengthens civil society and reduces its own role. The future of this country depends on the future of marriage. – Ryan T. Anderson, “Marriage: What It Is, Why It Matters, and the Consequences of Redefining It”, Heritage Foundation, March 11, 2013
In a 5-4 opinion, the Supreme Court ruled in Obergefell v. Hodges that states must license same sex marriages and recognize licenses issued by other states. The decision was based on the due process and equal protection provisions of the Fourteenth Amendment.
There are two over-arching errors in this decision.
First, in reading this right into the Constitution, the Court played social policy maker instead of judge. This issue should have been left to the states, but the Court chose instead to make extensive pronouncements of social policy and create a right to same sex marriage under the Constitution.
Second, the Court overlooks huge logical gaps throughout its use of precedent and case law. All of the marriage decisions the majority relies on pertained to marriage between a man and a woman. None of them dealt with a marriage between two people of the same sex. To claim all those decisions contemplated such relationships as constitutionally protected marriages is an incredible leap in legal reasoning. However, it is more understandable when one views marriage (as the majority appears to do here) as simply an interaction between civil government and the individual (Justice Kennedy stated the institution of marriage “has evolved over time). The Court arrives at its conclusion here by viewing marriage as simply whatever man says it is; once its reasoning is divorced from God’s authority, the Court more easily appends same sex “marriage” to the view of “marriage” it believes is constitutionally protected.
If there is a silver lining to the ruling, it is that because this ruling is heavily based on due process grounds, and focused less on equal protection (and avoiding animus entirely), there could be more leeway to protect religious freedom when regulating matters related to same sex marriage.
In the majority opinion, authored by Justice Kennedy (and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan), the Court relies on its own view and judgment of the history of marriage, along with legal validation of gay rights in Bowers and Lawrence, and subsequent more recent cases, as purported precedent for its decision.
In an attempt to legitimize its reasoning and conclusions, the Court makes many social science pronouncements on marriage—such as “new insights have strengthened, not weakened, the institution of marriage” and “many persons did not deem homosexuals to have dignity in their own distinct identity.” Regardless of their accuracy, the Court has no authority or expertise to make such claims.
At one point, Justice Kennedy claims the petitioners did not intend to denigrate natural marriage. The problem is, whether they intend to or not, disrupting marriage as God intends it will eventually lead to its destruction.
The Court first held that Fourteenth Amendment substantive due process protections required states to license same-sex marriage. In the Court’s view, this right extends to “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Which rights are protected by substantive due process “requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect… . That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries.”
The Court starts by recognizing that it has long protected the “right to marry”—relying on rulings in the racial, child support, and prison contexts. The Court recognized that none of these dealt with same sex marriage, and attempts to excuse itself: “The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.”
At one point (which is lacking airtight reasoning), the Court basically acknowledges it is recognizing this right for the first time—yet marginalizes Glucksburg, the case governing recognition of due process rights—and proceeds to rely on four reasons for doing so:
(1) “[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy” (citing the racial, child support, and prison context). “Choices about marriage shape an individual’s destiny.” “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”
(2) Relying on Griswold, the Court claims: “A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”
(3) “A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”
(4) “Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”
Ironically, Justice Kennedy’s third point is precisely why children need a mom and a dad. The Court here relies on Pierce, a case which by no means contemplated that marriage could be anything other. And his fourth point is exactly why marriage is between a man and a woman. Calling it anything other reveals how when officials (including judges) depart from an understanding of what higher law and natural law say about mankind, their reasoning goes astray.
Throughout the majority opinion, the Court makes social pronouncements it has no authority to make. And none of the cases it relies on ever contemplated that marriage could be anything but between a man and a woman. Justice Kennedy quotes the 1888 case Maynard v. Hill, which relied on de Tocqueville to explain that marriage is “‘the foundation of the family and of society, without which there would be neither civilization nor progress.’ Marriage, the Maynard Court said, has long been ‘a great public institution, giving character to our whole civil polity.’”
Does Justice Kennedy sincerely believe that the Maynard Court, which he quotes, contemplated its holding as applying to marriages besides those between men and women? Or that that Court would view such marriages as helpful to the “social order?” Yet he proceeds to claim “[t]here is no difference between same- and opposite-sex couples with respect to [the] principle” that marriage plays an important part in the “social order.”
The Court next held that the state laws at issue also violated the Fourteenth Amendment’s equal protection provision. In its earlier marriage cases, the Court asserts, equal protection and due process grounds had been intertwined. The Court attempts to show that due process and equal protection also intertwine to protect same sex marriage in this case. The equal protection grounds are less clear and do not feature as prominently as the due process arguments in the majority opinion. At this point, the Court also expressly overruled Baker.
In his opinion, Justice Kennedy acknowledged his recent pro-democracy thinking in Schuette, but (unfortunately) did not decide to heed it:
“Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN, 572 U. S. ___ (2014), noting the “right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, “[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” Id.,at ___ (slip op., at 15). Thus, when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking. Id.,at ___ (slip op., at 17). This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.”
Why, then, did Justice Kennedy decide as he did here? In essence, he appears to feel differently about private sexual matters compared to other issues; this is evident in his consideration of Bowers and Lawrence, which he discusses here. Thus, the Court denied its own reasoning (indeed, Justice Kennedy denied his own reasoning) from the Schuette case.
Justice Kennedy decides that same sex marriage will not harm natural marriage, and ends with another policy pronouncement:
“Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.”
The Court concludes that its reasoning requiring states to license same sex marriages would undermine any opposition to recognizing such marriages from out of state. Thus, the Court held that states must issue same sex marriage licenses and must recognize same sex marriages performed in other states.
Here, the Court’s thinking again reveals an approach to marriage that only appears more logical (if at all) when God is removed from the picture, and is evidenced by such statements as: “It would misunderstand these men and women [the petitioners] to say they disrespect the idea of marriage.” Unfortunately, the truth that this reasoning harms marriage by removing its Author from the picture whether or not people intend to was missed here.
The Court does briefly address religious liberty concerns:
“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”
While this recognition of religious liberty protections is better than nothing, it does not accurately capture a satisfactory vision of how religious liberty should be (or even currently is) constitutionally or statutorily protected. Several dissenting Justices make similar observations.
Dissenting Opinion by Chief Justice Roberts
Chief Justice Roberts wrote a dissenting opinion (joined by Justices Scalia and Thomas), noting that the majority ruling was a policy decision, not a legal decision. He observes that the changes in marriage laws over time (while changing the regulation of marriage in some respects) did not, as the majority claims, alter the “structure” of marriage as between a man and a woman.
“In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here.”
He aptly pointed to Dred Scott as an example of when the Court’s view on substantive due process got out of hand and is now viewed with distain many years later.
The Chief also recognizes that the majority’s claim that marriage is restricted to “two” people just can’t logically hold up under its own reasoning, and could easily be extended to plural marriage:
“Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.”
“Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.”
Chief Justice Roberts then quotes Schuette, and notes that although there is still a losing side in a democratic debate, at least those people will know “that they have had their say,” unlike here, where the court has disenfranchised over 50 million Americans.
He also recognizes religious liberty issues which may arise:
“Today’s decision … creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage… . The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.”
There is more:
“Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage… . There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”
The Chief then takes issue with the majority’s statement that laws supporting natural marriage are demeaning; he does not like the majority’s implication that those supporting such laws wish to demean anyone. He concludes that “while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.”
Dissenting Opinion by Justice Scalia
Justice Scalia also dissents (joined by Justice Thomas) and accuses the majority of legislating, not judging.
He aptly points out that the Windsor majority blatantly contradicts itself today:
“It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today): “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”
Justice Scalia concludes with a warning:
“With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
Dissenting Opinion by Justice Thomas
Justice Thomas also dissents (joined by Justice Scalia), noting the danger (as evidenced today) of substantive due process doctrine—by which rights “come into being” under the Fourteenth Amendment. He argues the Framers recognized no “right” to have the state recognize same sex relationships; there is no liberty to government benefits, just liberty from adverse government action.
He continued by focusing on the threat to religious liberty this decision represents, recognizing that while this ruling may change governmental recognition of marriage, it “cannot change” the religious nature of marriage. “It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”
Justice Thomas also points out the problems with the majority’s conception of religious liberty:
“Religious liberty is about more than just the protection for ‘religious organizations and persons … as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.’ … Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.”
“Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.”
Dissenting Opinion by Justice Alito
Justice Alito also dissented (joined by Justices Scalia and Thomas), arguing that the Court’s decision is based on a flawed understanding of what marriage is, and that it takes the decision out of the hands of the people who have the authority to decide it.
He also believes this decision threatens religious liberty:
“It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women… . The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”
“Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected… . We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
Justice Alito recognizes that the Court now makes it impossible for states to consider how to legislatively protect conscience rights should they want to do that while at the same time legislatively authorizing same sex marriage.
“Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.”
At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.
However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I present Part 3 of a four-part series with key excerpts from those decisions. Part 1 featured the earliest such decision, Baker v. Nelson (Minnesota, 1971). Part 2 featured the decision of Hernandez v. Robles (New York, 2006).
Today, we look at excerpts from Andersen v. King County, a 2006 decision by the Supreme Court in the State of Washington (legal citations are omitted or abbreviated).
The U.S. Supreme Court has said that individuals have a “fundamental right” to marry, as a “liberty” interest protected by the Due Process Clause of the Fourteenth Amendment. Advocates of redefining marriage argue that this “right” necessarily includes the right “to marry the person of their choice,” even if that person is of the same sex. The Washington court responded:
Nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child-rearing. In Skinner v. Oklahoma, (1942), involving invalidation of a nonconsensual sterilization statute, the Court said “[m]arriage and procreation are fundamental to the very existence and survival of the race.” In Loving [v. Virginia, 1967], the Court said that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival” (quoting Skinner). In Zablocki [v. Redhail, 1978], the Court invalidated on equal protection and due process grounds a statute that prohibited marriage for any resident behind in child support obligations. The Court noted that
[i]t is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships… . [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.
The Court also quoted the statements made in Skinner and Loving. See also, Maynard v. Hill, (1888) (marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress”).
This procreation emphasis is in contrast to the more adult-centered view of marriage promoted by those who would redefine marriage. In a footnote, the court declared that:
… the right to marry is not grounded in the State’s interest in promoting loving, committed relationships. While desirable, nowhere in any marriage statute of this state has the legislature expressed this goal.
Like each of the supreme courts that have upheld one-man, one-woman marriage, the Washington court said that allowing infertile heterosexual couples to marry does not undermine the argument that the definition of marriage is rooted in interests related to procreation:
… [A]s Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single-sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.
For more information on the legal arguments regarding the redefinition of marriage see: “Marriage at the Supreme Court: Why One-Man, One-Woman State Laws Remain Constitutional.”
Dr. Randy Olson recently released data (reported in the Washington Post) examining the rise and fall of marriages and divorces over the last 144 years. Using data from the Center for Disease Control’s (CDC) National Center for Health Statistics (NCHS), Dr. Olson compares the number of marriages and divorces per 1,000 people year by year. By analyzing these data–instead of the total number of marriages and divorces –Dr. Olson was able accurately to compare the rate of marriages and divorces over the past 144 years despite fluctuations in the population numbers.
The results of the data are disheartening, but expected. It shows that the number of marriages in the United States has fallen consistently since the 1980s. What is more, the number of marriages has dropped to 6.8 per 1000 people, the lowest it has been since 1867, even lower than during the Great Depression.
Despite the fact that fewer people are getting married, intact marriages are as important now as they have ever been. To learn more about the importance of marriage for individuals, the economy, and society as a whole, visit the Marriage and Religion Research website: http://marri.us/home.
At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.
However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I present Part 2 of a four-part series with key excerpts from those decisions. Part 1 featured the earliest such decision, Baker v. Nelson (Minnesota, 1971).
The next three feature decisions by the highest court in three liberal states—New York, Washington, and Maryland. Unlike the Minnesota decision, each of these was handed down within the last ten years. Each of these states has since redefined marriage, but they have done so through the democratic process, not through judicial fiat. The U.S. Supreme Court should allow the same privilege to other states—the eleven which has chosen democratically to change their definition of marriage, and the thirty which have put a one-man-one-woman marriage definition in their state constitutions.
In Hernandez v Robles in 2006, the Court of Appeals of New York (the state’s highest court) addressed the rational basis which supports the definition of marriage as the union of a man and a woman (citations abbreviated):
The critical question is whether a rational legislature could decide that these benefits [of civil marriage] should be given to members of opposite-sex couples, but not same-sex couples… . We conclude … that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, both of which are derived from the undisputed assumption that marriage is important to the welfare of children.
First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It could thus choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.
The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unsatable relationships between people of the opposite sex present a greater danger than children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.
There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule—some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes—but the Legislature could find that the general rule will usually hold.
Later in its opinion, the New York court responded to the chief argument made against its conclusion that a one-man-one-woman marriage definition is rationally related to concerns about procreation and child-rearing:
Plaintiffs argue that a classification distinguishing between opposite-sex couples and same-sex couples cannot pass rational basis scrutiny, because if the relevant State interest is the procreation of children, the category of those permitted to marry—opposite-sex couples—is both underinclusive and overinclusive. We disagree.
Plaintiffs argue that the category is underinclusive because, as we recognized above, same-sex couples, as well as opposite-sex couples, may have children. That is indeed a reason why the Legislature might rationally choose to extend marriage or its benefits to same-sex couples; but it could also, for the reasons we have explained, rationally make another choice, based on the different characteristics of opposite-sex and same-sex relationships. Our earlier discussion demonstrates that the definition of marriage to include only opposite-sex couples is not irrationally underinclusive.
In arguing that the definition is overinclusive, plaintiffs point out that many opposite-sex couples cannot have or do not want to have children. How can it be rational, they ask, to permit these couples, but not same-sex couples, to marry? The question is not a difficult one to answer. While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea.
Rational basis scrutiny is highly indulgent towards the State’s classifications. Indeed, it is “a paradigm of judicial restraint” (Affronti v Crosson, New York, 2001). We conclude that permitting marriage by all opposite-sex couples does not create an irrationally over-narrow or overbroad classification. The distinction between opposite-sex and same-sex couples enacted by the Legislature does not violate the Equal Protection Clause.
At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.
However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I begin a series offering excerpts from those decisions.
The earliest was in the Supreme Court of Minnesota, which handed down its decision in Baker v. Nelson on October 15, 1971. The appeal of this case was dismissed “for want of a substantial federal question” by the U.S. Supreme Court — establishing a binding precedent which over two dozen federal judges have chosen to ignore in the last two years.
While the U.S. Supreme Court issued no written opinion in Baker, the Minnesota Supreme Court did. Here are some key excerpts (with legal citations abbreviated):
The institution of marriage as a union man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. Skinner v. Oklahoma ex rel. Williamson, [U.S. Supreme Court] (1942), which invalidated Oklahoma’s Habitual Criminal Sterilization Act on equal protection grounds, stated in part: “Marriage and procreation are fundamental to the very existence and survival of the race.” This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.
. . .
The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that “abstract symmetry” is not demanded by the Fourteenth Amendment.
Loving v. Virginia, [U.S. Supreme Court] (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia’s antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination… .
Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.
For a more detailed description of Baker, and the full text of the decision, see this blog post from last year.
June 12 has been dubbed “Loving Day.” No, it is not an effort to compete with Valentine’s Day. “Loving Day” commemorates the anniversary of a Supreme Court decision — in the 1967 case of Loving v. Virginia — in which the court declared that state laws barring interracial marriage were unconstitutional. Advocates for redefining marriage to include same-sex couples argue that this case is precedent for striking down state laws that define marriage as the union of a man and a woman.
Richard Loving, a white man, had married Mildred Jeter Loving, a black woman, in the District of Columbia. They later moved to Virginia; but in 1958, police officers entered their house in the middle of the night and demanded to know, “What are you doing in bed with this lady?” Although the Lovings had their marriage certificate hanging on the wall, the sheriff was unimpressed, declaring, “That’s no good here.” The couple was jailed for five days, after which a judge accepted their guilty plea to a charge of violating the state’s anti-miscegenation statute. They were given the choice of spending a year in jail or leaving the state. They chose to return to D.C.— and then filed suit to overturn their conviction. The Lovings were vindicated by a unanimous Supreme Court nine years later.
California’s Supreme Court had already struck down a similar statute nineteen years earlier (Perez v. Sharp, 1948). That court had declared that “the essence of the right to marry is freedom to join in marriage with the person of one’s choice.” Homosexual activists claim that this is precisely the principle that should apply to their efforts to marry a chosen person of the same sex.
There is a certain logic to this argument. Laws against same-sex marriage do restrict a person’s choice of marriage partner, as did laws against interracial marriage. But the flaw in the argument is that no one — not even the most radical advocate of homosexual marriage — is proposing to eliminate all restrictions on one’s choice of marriage partner. Every state forbids marriage to specific classes of people — namely, those who are already married, children, or certain close blood relatives.
The point, then, of the cases on interracial marriage cannot have been that restrictions on marital choice are unacceptable across the board. It was, rather, more specifically that race was not a legitimate basis for imposing such a restriction.
The constitutional basis of the case against the “anti-miscegenation” laws was that they violated the 14th Amendment’s equal protection clause, which states that no state may “deny to any person within its jurisdiction the equal protection of the laws.” Courts have ruled that this does not mean states can never have laws that treat some people differently from others, but those distinctions must have a reason and cannot be arbitrary.
It is worth reading an excerpt from the court’s decision in Loving (citations omitted or abbreviated). This was the conclusion of the Court’s Equal Protection analysis:
The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.
There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” Korematsu v. United States (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they “cannot conceive of a valid legislative purpose … which makes the color of a person’s skin the test of whether his conduct is a criminal offense.” McLaughlin v. Florida.
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
Just in these short paragraphs there are references to “racial discrimination,” “distinctions drawn according to race,” “ancestry,” “racial classifications,” “the color of a person’s skin” — a dozen such references in all. This should be sufficient to demonstrate that Loving was not based on a generalized right to marry “the person of your choice,” but was rather based specifically on the Constitution’s clear prohibition of state-sponsored discrimination based on race.
Advocates for redefining marriage have also argued that same-sex couples have been denied the “fundamental right to marry,” an interest in “liberty” that courts have found to be implicit in the 14th Amendment’s “Due Process” clause, which says that no state shall “deprive any person of life, liberty, or property, without due process of law . . .”
Advocates of marriage redefinition point out that Loving was based on a “due process/fundamental right” argument, not just an equal protection one. True — but here is the entire text of the Court’s fundamental rights analysis in Loving:
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, (1942). See also Maynard v. Hill, (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
This part of the opinion was a scant 169 words out of over 2,500 in the decision. However, it, too, makes reference to “racial classifications” and “invidious racial discriminations.” There is thus no reason to believe that Loving forbids classifications on some basis other than race.
Numerous courts considering same-sex “marriage” lawsuits have rejected the Loving analogy. As the judge in a 2003 Indiana case (Morrison v. Sadler) noted, “Anti-miscegenation laws, because they interfered with the traditional marriage relationships in pursuit of opprobrious racial segregation policies, had no legitimate connection to the institution of marriage itself… . [W]hatever else marriage is about, it is not about racial segregation.” In contrast, however, “restrictions against same-sex marriage reinforce, rather than disrupt, the traditional understanding of marriage as a unique relationship between a woman and a man. Marriage traditionally and definitionally has had to do with the sex of each participant.”
A Superior Court in New Jersey came to a similar conclusion in a similar case (Lewis v. Harris) in 2003:
Plaintiffs’ reliance on decisions striking down statutes that prohibit interracial marriage is misplaced. These decisions derive from Constitutional amendments prohibiting racial discrimination and subjecting laws that classify individuals based on race to the highest level of scrutiny. No similar Constitutional provisions outlaw statutory classifications based on sexual orientation … . Comparing the State’s marriage statutes to laws perpetuating racial prejudice, therefore, is inapposite.
Individuals challenging bans on interracial marriage had a powerful weapon: Federal Constitutional provisions, passed by Congress and adopted by State Legislatures, that expressly prohibited States from denying recognized rights based on race. It was entirely appropriate for the courts to enforce those duly enacted Constitutional provisions by striking down statutes that made race a qualifying condition for access to a recognized right to marry. Plaintiffs, on the other hand, assert their claims in the absence of express Constitutional provisions supporting their position, and ask the court to circumvent the Legislative process by creating a right that has never before been recognized in this country.
The mandate for racial equality is firmly enshrined in both the Federal and State Constitutions. Importantly, two amendments to the United States Constitution expressly address racial equality [the 13th and 14th]… .
The Supreme Court’s decision in Loving v. Virginia is predicated entirely on the Fourteenth Amendment’s prohibition of racial classifications… .
No similar Constitutional provision accords heightened protection to individuals who claim that statutes discriminate on the basis of sexual orientation… .
… [P]laintiffs … lack the significant legal foundation that was available to the plaintiffs in Loving to demand judicial recognition of the rights they seek.
In November 2014, a panel from the U.S. Court of Appeals for the Sixth Circuit upheld one-man-one-woman marriage laws in Michigan, Ohio, Kentucky, and Tennessee. It is the appeal of these cases (consolidated under the case name Obergefell v. Hodges) which is now before the Supreme Court.
The Sixth Circuit panel noted another compelling reason for questioning whether Loving provides a precedent for allowing same-sex couples to legally “marry.” In 1972, a case out of Minnesota (Baker v. Nelson), making the same claims for same-sex “marriage” now being asserted, was appealed to the Supreme Court. It dismissed the case “for want of a substantial federal question,” a disposal which provides a binding precedent on all lower courts. It is irrational to claim that Loving established a right to same-sex “marriage,” when the Supreme Court already rejected that argument five years after Loving was decided:
Matters do not change because Loving v. Virginia held that “marriage” amounts to a fundamental right. When the Court decided Loving, “marriage between a man and a woman no doubt [was] thought of … as essential to the very definition of that term.” Windsor, 133 S. Ct. at 2689. In referring to “marriage” rather than “opposite-sex marriage,” Loving confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples. Loving did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” a reference to the procreative definition of marriage. Had a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.
Natural Marriage Builds Bridges, Not Walls
The clear purpose of the bans on interracial marriage was to build walls between two groups of people in society, blacks and whites. Such laws were designed to reinforce a system of racial segregation, keeping the races apart from one another.
In contrast, defining marriage as the union of male and female has exactly the opposite intent and effect. Rather than building walls between two classes of people, it creates a bridge across the most fundamental gap in humanity — the gap between male and female. Bridging the divide of the sexes by uniting men and women in marriage is common to all human civilizations, and serves the good of society.
Interracial marriage does not change the definition of marriage, and laws against interracial marriage had as their only purpose preserving a social system of racial segregation.
Homosexual “marriage,” on the other hand, changes the fundamental definition of the institution, and would form at least three segregated forms of marriage: male-only unions, female-only unions, and opposite-sex unions.
Legally defining marriage as the union of one man and one woman does not burden the institution of marriage. Instead, it preserves marriage’s nature and purpose. Homosexual marriage is not a “civil right,” it is a political demand that should be denied.
Note: Portions of this post were excerpted from Peter Sprigg’s book Outrage: How Gay Activists and Liberal Judges are Trashing Democracy to Redefine Marriage (Washington, DC: Regnery Publishing, Inc., 2004).
For millennia, marriage has been universal to civilization with most marriage ceremonies involving religion. Yet for years, traditional marriage and the family have been subjected to secular ridicule, with the family increasingly politicized and socialized by “progressive” government bureaucracies.
The result has been an unprecedented decline of the family in America, producing increasing rates of non-marital births, divorces, juvenile crime, substance abuse, and other pathologies. However, this trend need not be permanent. Put simply, the progressive narrative that supports it is unfounded and refuted by the witness of cultural experience.
The biblical account of marriage begins with one man and one woman: “God created man in His own image, in the image of God He created him; male and female He created them. God blessed them.’” And, “For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh.” Jesus later called humanity back to these records (Matthew 19:4–5, Mark 10:6–8), and the Christian story is viewed as ending with the wedding of Christ with His bride, the Church, from which all Christian discussions of marriage stem.
In Christianity, marriage is hence a sacred union of the highest order. However, since the Enlightenment, secularism has defined marriage as a civil union. Many academics view traditional marriage as a patriarchy to dominate and oppress women, all supported by despots animated by their Christian faith. Such a narrative is based on the theory that primitive mankind was egalitarian, matrilineal, and socialist, with communal sexual relations, despite the biological and kinship basis of heterosexual pairing.
However, for thousands of years around the world, a wife was considered a husband’s property. In ancient Jewish communities, almost every adult was married. By age thirteen, a man chose a wife who was betrothed (committed legally to marriage) and, thus, considered de facto married. The man headed the family, with the wife his property. In the Greco-Roman pagan world, marriage was reserved for citizens, and a woman shared her husband’s station as mother of his children, but she and the offspring were his.
While adultery was prohibited for women, no fidelity obligation existed for men. Older men could force marriage on pre-pubescent girls and compel them to have abortions, usually certain death for not only the baby but also the girl. Moreover, according to sociologist Rodney Stark in his book The Rise of Christianity, infanticide was a commonplace, with baby girls disproportionately abandoned, resulting in “131 males per 100 females in the city of Rome, and 140 males per 100 females in Italy, Asia Minor, and North Africa.”
Only with the arrival of Christianity did the status of women change as obligations were placed on husbands. As Stark has shown, “Christians condemned promiscuity in men as well as in women and stressed the obligations of husbands toward wives as well as those of wives toward husbands…. The symmetry of the relationship Paul described was at total variance not only with pagan culture but with Jewish culture as well.”
Stark shows that Christianity recognized women as equal to men, all sacred to God. Christian wives did not have abortions (neither did Jewish wives), and Christians opposed infanticide, polygamy, incest, divorce, and adultery—all to women’s benefit. No longer serfs to men, women had dignity, were not rushed into marriages, and served as leaders in rapidly growing Christian communities. Christian women married into more secure families, had better marriages, were not forced to remarry if widowed, and were given assistance when needed. Stark notes Paul’s teaching:
But because of the temptation to immorality, each man should have his own wife and each woman her own husband. The husband should give to his wife her conjugal rights, and likewise the wife to her husband. For the wife does not rule over her own body, but the husband does; likewise the husband does not rule over his own body, but the wife does. (I Corinthians 7:2-4)
Thus, the progressive narrative upon which contemporary, anti-family policies rest, is false. Only through Christianity did women receive full marriage rights and gender equality in fidelity. The private, monogamous family has served well the human needs for love and companionship, economic and social well-being, and the rearing of children.
Abandoning these lessons is at the root of the modern decline of the family, and government can only further undermine the rights and benefits that have uplifted the lives of countless men, women, and children through Christian-inspired marriage.
To restore the family, civic and religious leaders must continue to challenge such folly and advance reforms that strengthen rather than weaken the most extraordinarily successful social unit in history – the family. In this regard, religious and secular leaders should protect the sovereignty of religious institutions to perform marriages according to their own beliefs.
*David J. Theroux is founder, president and chief executive officer of the Independent Institute in Oakland, California; founder and president of the C.S. Lewis Society of California; and publisher of The Independent Review.