Tag archives: Marriage

News Flash: Pornography Hurts Marriage

by Rob Schwarzwalder

December 22, 2014

Our friends at the Porn Harms Coalition (of which FRC is a member) have drawn attention to a study that quantifies what every common-sensical person in the world knows intuitively: Viewing pornography discourages and damages marriage. The German Institute for the Study of Labor (apparently the Germans understand that marriage affects labor productivity, as FRC’s Marriage and Religion Research Institute has argued for years) hired researchers at Pennsylvania’s West Chester University and Britain’s Timberlake Consultants to study whether “increasing ease of accessing pornography is an important factor underlying the decline in marriage formation and stability.”

Well, the German-sponsored study found it did: “Substitutes for marital sexual gratification may impact the decision to marry. Proliferation of the Internet has made pornography an increasingly low-cost substitute … We show that increased Internet usage is negatively associated with marriage formation. Pornography consumption specifically has an even stronger effect.”

Pornography as a “low-cost substitute” for marriage? So, are women merely sexual tools for readily-aroused young men? What a comment on how many young men in our time view women! Yet advocates of complete sexual autonomy (over-the-counter contraception for all, for example) refuse to acknowledge this corrosive fact.

We welcome this contribution to the scholarly literature showing that pornography adversely affects getting and staying married. To simplify things, though, ask any pastor, priest or rabbi who’s ever counseled a woman with a boyfriend or husband addicted to pornography. That conversation will prove more unforgettable than even the most riveting study ever can.

For those struggling with addiction to pornography or who want to help those who are, Porn Harms offers great resources. And, remember, Jesus Christ is the greatest resource of all.

Christmas Joy and Divorce

by Nathan Oppman

December 9, 2014

Each Christmas my wife Joy and I set up our tree and relive the memories of past years. For every year of Joy’s life she has received an ornament commemorating a major life event. There is a baby crib for year one and a Crayon box for a few years later. There is an ornament for her first car and for her college graduation. There are many “Joy” ornaments as can be expected for someone with such a cheery Christmas name. And there is one of my favorites, the one that reminds us of our marriage. Sadly many couples do not spend Christmas together. Many more use the holiday, not for sharing sweet memories but for hurtful words and unkind actions. Others spend it shuttling the kids between their broken homes.

I consider my marriage to my wife to be precious as well as sacred. When we said our vows we both sincerely understood and meant “for better or for worse” and “‘til death do you part.” A recent article in First Things on the danger of no-fault divorce laws demonstrates the sad reality for many families harmed by recent American attitudes toward divorce. The article lists some casualties of no-fault divorce including “abandoned spouses, the institution of marriage, and American society itself.” No-fault divorce gives the false impression that there is an easy way out of the difficulties of marriage. Rather than seeking to understand one another, become more loving, and to get counseling when needed, many couples simply give up on marriage. But divorce is never that simple. It affects children, the couple, and the country. A society whose basic family unit is not functioning in harmony cannot expect its political institutions to function well. A society where the marriages are not accountable to God cannot expect its other institutions to be accountable to God.

Love in marriage is a difficult thing. One sees all of the faults of their spouse. It can be easy to become frustrated and discouraged. But marriage is not about one, it is about two who have become one. No fault divorce has caused many homes to become not a place of joy at Christmas but one of bitterness and broken hearts. We must work to change the no-fault divorce culture to a marriage-is-precious culture. So this Christmas if you are struggling, let your spouse know you believe your marriage is precious and seek help. If you are happily married then I recommend going home and, like me, giving your Joy a loving Christmas hug, it will do more good than you know.

Sketchy Judicial Assignments in Ninth Circuit Marriage Cases

by Chris Gacek

November 14, 2014

The American people are justified in wondering if they are ruled by interlocking ruling bodies that operate in secret, govern with unbridled duplicity, and are immune to correction by the People acting through their representatives or acting directly in referenda. There have been many prominent examples in the last two months. Two involve our imperious judicial oligarchy.

But, first we have the recent reports of repeated statements by Obamacare insider and MIT economist, Jonathan Gruber, calling the American people “stupid” and boasting that Obamacare was foisted on the public through a determined campaign of lying and deviousness. Lies on top of lies on top of lies.

Second, in early October the U.S. Supreme Court appeared to act with stunning cynicism when it dismissed requests for review of marriage-definition cases arising out of several federal appellate courts. The Court had heard an identical case when it reviewed the constitutionality of California’s Proposition 8 less than two years ago. However, the Prop 8 case was dismissed because the plaintiffs, the proponents of Prop 8, were deemed to lack “standing” to sue. This conclusion was reached because California’s Attorney General took a dive in the litigation and refused to defend a ballot-approved amendment to the California constitution. (Prop 8 was supported by a 52% majority in November 2008.)

The October 2014 cases petitions to the Supreme Court checked all the boxes for standing, but the cases were still turned away allowing lower court rulings that struck down male-female marriage to stay in place. It appeared the that Supreme Court was taking the coward’s way out by allowing lower courts to redefine marriage in America without publicly putting forward a majority opinion explaining how the male-female definition of marriage could violate any constitutional principle. This Court, it appeared, didn’t even have the integrity to write its own Roe v. Wade for marriage. On November 6th the U.S. Court of Appeals for the Sixth Circuit supported the traditional marriage definition. Now that there is a split among the circuit courts, the Supreme Court’s stealth imposition strategy won’t work – if that is what they were doing. Now the nation is left with an incoherent stew of constitutional slop consisting of incongruent reasoning and standards. The reputation of the Supreme Court is being badly damaged each day this continues.

Well, if you were to think that the reputation of our black robed masterminds couldn’t get much worse, think again. In October 2014 a panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision striking down the male-female marriage regime established be the voters of Nevada and Idaho. (The court reversed an excellent Nevada opinion that had supported traditional marriage.) In mid-October, a private group in Nevada, the Coalition for Protection of Marriage, filed a petition and a supporting affidavit with supporting statistical analysis with the full Ninth Circuit purporting to demonstrate that the panels in cases on homosexual-related issues were not being assigned randomly. In fact, they claimed that two of the court’s most liberal members (Stephen Reinhardt and Marsha S. Berzon) were greatly overrepresented in such cases. Here is how the Coalition for Protection of Marriage summarized its claim of bias in panel selection:

The attached statistical analysis … explains that since January 1, 2010, Judge Berzon has been on the merits panel in five and Judge Reinhardt has been on the merits panel in four of the eleven Ninth Circuit cases involving the federal constitutional rights of gay men and lesbians (“Relevant Cases”), far more than any other judge and far more than can reasonably be accounted for by a neutral assignment process. Indeed, statistical analysis demonstrates that the improbability of such occurring randomly is not just significant but overwhelming. Thus, the odds are 441-to-1 against what we observe with the Relevant Cases—the two most assigned judges receiving under a neutral assignment process five and four assignments respectively (and anything more extreme). (Petition, 3-4.)

If assessed accurately, this assignment pattern was not random. The case assignment was rigged to help assure the politically desired outcome.

It goes without saying that this is an extremely serious accusation that needs investigation not just by some handpicked Ninth Circuit lackey but by the Chief Justice of the U.S. Supreme Court and by the new Senate Judiciary Committee to be chaired by Senator Grassley.

U.S. Court of Appeals for the Sixth Circuit: Upholding marriage and democracy

by Travis Weber

November 7, 2014

On November 6, 2014, the U.S. Court of Appeals for the Sixth Circuit, in an opinion written by Judge Jeffrey Sutton, held that the marriage laws of Kentucky, Michigan, Ohio, and Tennessee do not violate the federal Constitution.

The opinion is a model of judicial restraint. Judge Sutton declared that states may see fit to legalize same-sex marriage, as multiple states already have, but that decision is to be left to the people of the states; the Constitution does not permit a “poll” of federal judges about “whether gay marriage is a good idea.”

A number of arguments were raised by the challengers of the marriage laws. Judge Sutton confronted all of them, and methodically explained why they are each insufficient to entitle the challengers to relief.

The 6th Circuit is simply following precedent, which it is required to do

The Court first explained that its position as an intermediate court requires it to follow on-point precedent, which is readily available in the case of Baker v. Nelson. Even in light of Loving v. Virginia (which had been decided four years previous to Baker), the Minnesota Supreme Court in Baker held that there was no federal constitutional right to same-sex marriage, for “‘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.’” The losing party appealed to the Supreme Court, but the Court dismissed the constitutional same-sex marriage claim, thus establishing Supreme Court precedent binding the 6th Circuit in this case.

Neither does United States v. Windsor change the calculus, for Windsor and Baker dealt with different issues. As for the argument that Windsor and other cases constitute a “doctrinal development,” Judge Sutton relies on the explicit instruction of the Supreme Court in other cases to conclude, quite reasonably, that Supreme Court precedents (which include Baker) must be followed until the Supreme Court makes clear otherwise. Unless the Supreme Court expressly overrules Baker by name, or by outcome, the 6th Circuit is bound by it. In addition, Judge Sutton clearly repudiated the notion that Windsor controls the present question somehow – noting that Windsor did not decide whether there was a constitutional right to same-sex marriage.

This type of solid logic is great to see; and shows that judges who have ruled otherwise have recklessly picked their favorite cases and twisted them to fit a favorable narrative. These other rulings finding a federal right to same-sex “marriage” have torn logic from its moorings; this is all the more apparent when contrasted with Judge Sutton’s solid logic here.

Baker independently provides grounds to conclude there is no constitutional rights claim to same-sex marriage, but Judge Sutton continues to address the remainder of challengers’ arguments nevertheless.

The original meaning of the Constitution does not offer support for same-sex marriage

Considering that the Constitution is an agreement between the people of the United States and the political leaders entrusted to govern them, Judge Sutton noted, its terms can only be changed with the consent of the people. For this reason also, clarity in interpretation and understanding are all the more important. There is no clear provision or understanding of the Constitution’s terms conferring a right to same-sex marriage. The Supreme Court also clearly looks to long-established historical track records of how constitutional provisions are to be interpreted – as revealed by precedent on a number of different constitutional provisions. Therefore, with this understanding, states are permitted, but not required, to legally allow marriage between members of the same-sex. If lawyers still invoke the original meaning of the Magna Carta, is it too much to ask that the original meaning of the Constitution (which, as Judge Sutton noted, no party to the case has suggested permits same-sex marriage) be respected? Indeed, it is not. Judge Sutton concluded that the original meaning of the Constitution and the historical record of what it permits does not reveal any constitutional right to same-sex marriage.

The state marriage laws meet rational basis review

Judge Sutton next concluded that the state marriage laws at issue meet rational basis review, which is satisfied as long as there is “any plausible reason” for the laws. Indeed, “[a] dose of humility makes” the Court “hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States.”

The Court noted it is clearly rational for the state to want to regulate the effects of sexual activity – which raises very important questions such as who is responsible for children produced by sexual activity, how many mates a person may have, and who is responsible for children which one or more of the partners helped to produce. The fact “[t]hat we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.” This alone is evidence of the rational basis of such laws. Moreover, “rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges,” Judge Sutton concluded. “By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality.”

It is also clearly rational for the states to want to wait and see what happens as a result of the legalization of same-sex marriage before changing their own laws on a norm which has existed for centuries. Developments in the United States on this issue have been rapid-fire, and yet at the same time, many states have simply left in place the norms to which they have always held. This is certainly rational, for “[a] Burkean sense of caution does not violate the Fourteenth Amendment.”

Either of these two grounds would independently satisfy rational basis review. Yet even the challengers’ own “love-and-commitment” definition of marriage would fail under their view of rational basis review. For no state requires couples, whether gay or straight, to be in love. Yet on the other hand, their definition fails to account for plural marriages, for there is “no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot.” The Court proclaimed, “[i]f it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.” Judge Sutton noted that the challengers “have no answer” on this point. Yet “[w]hat they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage.

Judicial deference to the people is a serious issue under rational basis review. Indeed, as Judge Sutton noted, the Supreme Court has held that a “State’s interest in maintaining close ties among those who steer ships in its ports justifies denying pilotage licenses to anyone who isn’t a friend or relative of an incumbent pilot. Can we honestly say that traditional marriage laws involve more irrationality than nepotism?”

Ultimately, rational basis review is clearly satisfied here because either the regulation of sexual activity or a decision to proceed with caution on marriage laws would satisfy the constitutional standard. Thus the Court could dispose of the case at this point. But Judge Sutton continues to address the many arguments raised by the challengers – who no doubt are hoping that one of them would stick.

The voters in the states cannot be painted with the broad brush of “animus”

Judge Sutton next dismissed the idea that the state marriage laws are driven by animus, noting that the laws (which there are plenty of legitimate reasons to support) merely hold in place norms which have been around for the entire history of civilization. As the Court noted, “if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.” How could the voters be blamed for feeling this way, when judges around the country were starting to strike down these laws out of the blue? It was at this time that voters decided to codify these long-held traditions in law – an act which the Supreme Court itself affirmed to be their prerogative to decide sensitive public policy issue in Schuette v. Coalition to Defend Affirmative Action. Painting the voters of the states with the broad brush of animus is “no less unfair” than portraying all supporters of same-sex marriage as intent on destroying American families to the core. Thus the idea that animus has driven state marriage laws, and that this serves as a reason to find them unconstitutional, fails entirely.

There is no fundamental right to same-sex marriage in the Constitution

The Court next tackled the question of whether there was a fundamental right to same-sex marriage, beginning by noting that it does not appear explicitly in the Constitution, and next by finding it is not historically “deeply rooted” as necessary to “ordered liberty.” Loving does not support the idea that this right historically existed. Loving did not use the term “opposite-sex” marriage, but that would have been redundant. For in Loving the Court proclaimed that marriage was “fundamental to our very existence and survival” – referring to the procreative aspect of marriage. Judge Sutton reasoned:

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.”

Neither do Zablocki v. Redhail or Turner v. Safley supporter the challengers’ claim here, for “[i]t strains credulity to believe that a year after each decision a gay indigent father could have required the State to grant him a marriage license for his partnership or that a gay prisoner could have required the State to permit him to marry a gay partner. When Loving and its progeny used the word marriage, they did not redefine the term but accepted its traditional meaning.”

Judge Sutton also noted that the Supreme Court has chosen not to subject laws regulating other aspects of marriage – such as divorce laws, polygamy laws, and laws regulating the age and familial status of those entering marriage – to strict scrutiny. As is the case with same-sex relationships, there are other areas of action intersecting with marriage laws which do not implicate fundamental rights subject to strict scrutiny.

In conclusion, there is no fundamental right to same-sex marriage – it is not mentioned in the Constitution, and cannot be recognized under the applicable legal standard.

Sexual orientation is not a “discrete and insular class without political power”

As the Court noted, rational basis review applies to sexual orientation classifications. The Supreme Court has never held that heightened review applies, and has not recognized a new suspect class in over four decades. Windsor does not support any contrary conclusion; rather, Windsor overwhelmingly supports the conclusion that marriage law and policy is to be left in the hands of the states. If it wasn’t clear enough, Judge Sutton emphasized the point again: Windsor does not support a federal constitutional right to same-sex marriage – any other reading “would require us to subtract key passages from the opinion and add an inverted holding.” Thus there is no heightened review applied in this case.

The notion of “evolving meaning” cannot support the legalization of same-sex marriage

Even if changing mores are examined for whether they can support new judicial decision-making, they do not support the idea that laws upholding natural marriage must be struck down. Such considerations are dependent on society’s values (not judges’ values), and thirty-one states would continue to permit only natural marriage if given the choice. If the “pacing” of the change of this issue in society is to be considered, and the challengers desire is to examine judicial decisions as part of this trend, what about the “pacing” of state legislatures’ decisions and the deference due to their interest in caution?

Moreover, even if international legal regimes are examined on this point, Judge Sutton observed that the great majority of countries have retained natural marriage. The European Court of Human Rights even held that European human rights laws do not guarantee a right of same-sex marriage. The Court makes a good point: “What neutral principle of constitutional interpretation allows us to ignore the European Court’s same-sex marriage decisions when deciding this case? If the point is relevant in the one setting, it is relevant in the other, especially in a case designed to treat like matters alike.”

In concluding this section of his opinion, Judge Sutton noted “[i]t is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage.” Indeed, even if evolving mores are considered, they do not support a wholesale forced acceptance of same-sex marriage.

For all these reasons, the marriage laws at issue in this case are perfectly constitutional.

The challengers had also argued, however, that state laws banning recognition of out-of-state marriages violated constitutional guarantees of equal protection and due process.

The Constitution does not require inter-state recognition of same-sex marriages

The Court stated that (as explained above) because states may constitutionally define marriage between men and women as they see fit within their borders, they may also constitutionally define how they will recognize out of state marriages. States have always decided how and when they will recognize other states’ laws based on choice of law doctrines. This situation is no different. Indeed, states already for a long time have refused to recognize invalid out of state marriages in other contexts – like incestuous or polygamous marriages, or others opposed to state law. States may decide what marriages to recognize as a matter of policy in those contexts, and this one is no different. If there is no constitutional right forcing a state to modify its own marriage laws, there is no constitutional right forcing a state to modify its laws regarding recognition of marriages performed in other states.

The challengers also argued that such bans violate the constitutional right to travel – which protects the right to leave and enter states, be welcomed, and, if a permanent resident, be treated like a citizen of the state. Yet, as the Court noted, state laws banning recognition of out of state marriage violate none of these rules. People can still move freely across boundaries, and are treated just like those inside the state who would violate the marriage laws. Thus, the right to travel does not require invalidation of state marriage laws on this point.

Conclusion

For all these reasons (explained above and summarized below), the Court held that state laws upholding natural marriage are fully legal and constitutional:

  • Baker requires that this Court dismiss the constitutional rights claims here.
  • Even if not dismissed, these laws meet rational basis review. There is no animus or suspect classification which would require any greater review.
  • There is also no fundamental right here – explicitly protected or deserving to be recognized.
  • There is no original meaning or “evolving meaning” support for a same-sex marriage right which would change any of the above analyses.
  • Additionally, no legal principle changes the constitutional calculus regarding laws pertaining to recognition of out-of-state marriages.

Judge Sutton reiterated one final time that such sensitive issues, especially when considering the abrupt timeline of change and legalization of same-sex marriage, should be left to the voters to decide. Only then can voters on both sides of the issue makes their voices heard in a manner befitting them as ultimate arbiters in a self-governing democracy, as opposed to making judges the “heroes” (or villains) they were never meant to be.

Dissent

Dissenting Judge Daughtrey repeats all the same arguments advanced by the challengers – arguments which have been repeated elsewhere by rogue judges striking down marriage laws. She accuses the majority of setting up a “false premise” of “who should decide” this issue – the voters or judges. Perhaps she is grasping at straws, for this is not a false premise at all, but a legitimate question that is actually before the court – whether there actually is a right to same-sex marriage at all – which, if absent, indeed permits the voters to decide. For much of her opinion, she spends time on items not even central to the legal issues – she discusses the various factual scenarios of the challengers’ lives, then takes shots at the expert testimony offered by the defending states (without equally scrutinizing plaintiffs’ experts), and finally simply recounts other recent circuit court rulings (which themselves have been crafted out of thin air in the past year with specious reasoning).

She fails to confront the precedential hurdles she faces in Baker (which have been discussed by the majority). She also fails to even examine the proper standard for rational basis review – whether there is “any plausible reason” for traditional marriage. Instead, she just skips the question, choosing instead to complain about the majority’s arguments without engaging them, and without applying the appropriate legal standard. For instance, at one point, she focuses on the level of difficulty of amending a state constitution – a question entirely irrelevant to the legal standard she is supposed to be considering.

She then claims the voters could be exhibiting “animus” if they have a “general, ephemeral distrust of, of discomfort with, a particular group.” Under that standard, we might as well be forced to legitimize virtually every behavior for which we currently incarcerate people.

It goes without saying further that the dissent is poorly constructed and lacks objectivity. That alone would be sufficient reason to criticize it; the cheap shots which she takes at the judges in the majority (and to some extent the voters) further discredit the dissent.

Excerpts - Judge Upholds “Principles of Logic and Law” in Backing Natural Marriage in Puerto Rico

by Peter Sprigg

October 23, 2014

U. S. District Court Judge Juan M. Pérez-Giménez issued a ruling on October 21 upholding Puerto Rico’s law defining marriage:

Marriage is a civil institution that emanates from a civil contract by virtue of which a man and a woman are mutually obligated to be husband and wife . . .”

Pérez-Giménez, a Jimmy Carter appointee, was the second District Court judge to stand against the tide of judges who have asserted a constitutional right to “marry” someone of the same sex in the months since the June 2013 ruling of the Supreme Court in United States v. Windsor. (Windsor struck down the portion of the federal Defense of Marriage Act, or “DOMA” which defined marriage for all purposes of federal law as the union of one man and one woman.) Judge Martin L. C. Feldman upheld the Louisiana marriage law on September 3.

The fundamental basis of the opinion by Judge Pérez-Giménez was a simple one, but one that most of the other courts addressing this issue have sidestepped—namely, that there is already binding Supreme Court precedent on whether the U.S. Constitution requires states to permit “marriages” of same-sex couples, and the answer is, “No.”

Following are some excerpts from the strong decision (some citations omitted):

The plaintiffs have brought this challenge alleging a violation of the federal constitution, so the first place to begin is with the text of the Constitution. The text of the Constitution, however, does not directly guarantee a right to same-gender marriage . . .

Without the direct guidance of the Constitution, the next source of authority is relevant Supreme Court precedent interpreting the Constitution. On the question of same-gender marriage, the Supreme Court has issued a decision that directly binds this Court.

The petitioners in Baker v. Nelson [1972] were two men who had been denied a license to marry each other. They argued that Minnesota’s statutory definition of marriage as an opposite-gender relationship violated due process and equal protection – just as the plaintiffs argue here. The Minnesota Supreme Court rejected the petitioners’ claim . . .

The petitioners’ appealed … The Supreme Court considered both claims and unanimously dismissed the petitioners’ appeal “for want of [a] substantial federal question.”

… The dismissal was a decision on the merits, and it bound all lower courts with regard to the issues presented and necessarily decided, Mandel v. Bradley, … (1977) . . .

This Court is bound by decisions of the Supreme Court that are directly on point; only the Supreme Court may exercise “the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., … (1989). This is true even where other cases would seem to undermine the Supreme Court’s prior holdings. Agostini v. Felton, … (1997)(“We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent…”). After all, the Supreme Court is perfectly capable of stating its intention to overrule a prior case. But absent an express statement saying as much, lower courts must do as precedent requires.

… The Supreme Court, of course, is free to overrule itself as it wishes. But unless and until it does, lower courts are bound by the Supreme Court’s summary decisions “‘until such time as the Court informs [them] that [they] are not.’” Hicks v. Miranda, … (1975) … .

The First Circuit expressly acknowledged – a mere two years ago – that Baker remains binding precedent “unless repudiated by subsequent Supreme Court precedent.” Massachusetts v. U.S. Dept. of Health and Human Services, … (1st Cir. 2012). According to the First Circuit, Baker prevents the adoption of arguments that “presume or rest on a constitutional right to same-sex marriage.”

. . .

Windsor does not – cannot – change things. Windsor struck down Section 3 of DOMA which imposed a federal definition of marriage, as an impermissible federal intrusion on state power. The Supreme Court’s understanding of the marital relation as “a virtually exclusive province of the States,” (quoting Sosna v. Iowa, … (1975)), led the Supreme Court to conclude that Congress exceeded its power when it refused to recognize state-sanctioned marriages.

The Windsor opinion did not create a fundamental right to same-gender marriage nor did it establish that state opposite-gender marriage regulations are amenable to federal constitutional challenges. If anything, Windsor stands for the opposite proposition: it reaffirms the States’ authority over marriage, buttressing Baker’s conclusion that marriage is simply not a federal question. Contrary to the plaintiffs’ contention, Windsor does not overturn Baker; rather, Windsor and Baker work in tandem to emphasize the States’ “historic and essential authority to define the marital relation” free from “federal intrusion.” It takes inexplicable contortions of the mind or perhaps even willful ignorance – this Court does not venture an answer here – to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.

. . .

Lower courts, then, do not have the option of departing from disfavored precedent under a nebulous “doctrinal developments” test. See National Foreign Trade Council v. Natsios, … (1st Cir. 1999) (“[D]ebate about the continuing viability of a Supreme Court opinion does not, of course, excuse the lower federal courts from applying that opinion.”); see also, Scheiber v. Dolby Labs., Inc., … (7th Cir. 2002) (“[W]e have no authority to overrule a Supreme Court decision no matter how dubious its reasoning strikes us, or even how out of touch with the Supreme Court’s current thinking the decision seems.”)(Op. of Posner, J.).

. . .

IVCONCLUSION

That this Court reaches its decision by embracing precedent may prove disappointing. But the role of precedent in our system of adjudication is not simply a matter of binding all succeeding generations to the decision that is first in time. Instead, stare decisis embodies continuity, certainly, but also limitation: there are some principles of logic and law that cannot be forgotten.

Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is “exclusively [an] opposite-sex institution … inextricably linked to procreation and biological kinship,” Windsor, … (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.

Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.

A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? See Elizabeth Brake, Minimal Marriage: What Political Liberalism Implies for Marriage Law, 120 ETHICS 302, 303 (2010). It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice.”

Of course, it is all too easy to dismiss such concerns as absurd or of a kind with the cruel discrimination and ridicule that has been shown toward people attracted to members of their own sex. But the truth concealed in these concerns goes to the heart of our system of limited, consent-based government: those seeking sweeping change must render reasons justifying the change and articulate the principles that they claim will limit this newly fashioned right.

For now, one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law. This principle

is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds … Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.

Schuette v. Coalition to Defend Affirmative Action, … (2014)(Op. of Kennedy, J.).

For the foregoing reasons, we hereby GRANT the defendants’ motion to dismiss. The plaintiffs’ federal law claims are DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

San Juan, Puerto Rico, this 21st day of October, 2014.

S/ JUAN M. PÉREZ-GIMÉNEZ

JUAN M. PÉREZ-GIMÉNEZ

UNITED STATES DISTRICT JUDGE

Ministers: Beware

by Travis Weber

October 20, 2014

As if the over-stepping Houston major’s office subpoenaing sermons and other private communications of pastors wasn’t enough, we now receive news of two elderly ministers being told by city officials that any refusal to marry a same-sex couple could cause them to face up to 180 days in jail and $1,000 in fines for each day they decline to do so.

For many years, the husband and wife team of Donald and Evelyn Knapp have presided over wedding services across the street from the local county clerk’s office in Coeur d’Alene, a beautiful city in North Idaho. Now, they are told they have to conform to their city’s iron-fisted demand that they “marry” men to men and women to women.

In other words, from the city to the ministers: Your religious liberty doesn’t really mean a thing when it comes to the new sexuality; you must come into line in accord with our views. When the city says something related to human sexuality should be accepted, that’s the final word.

For years, we have also been told by gay-marriage advocates that no harm would come from legalizing same-sex marriages. No one would be forced to participate.

Yet it seems that day has arrived. Court-issued stays have been lifted, and gay marriages have started to proceed in Idaho. Now a minister is being told by his government that he must officiate at these “marriages.”

Now that we are past the point where we were told the gay-rights crusade would stop, should we expect it to just stop here? I’ve grown doubtful of such expectations, as the advocacy and pressure for acceptance continue full steam. No, this crusade will likely continue until all are forced to approve.

These developments have occurred incrementally. As Albert Mohler points out, “[t]his is how religious liberty dies. Liberties die by a thousand cuts. An intimidating letter here, a subpoena there, a warning in yet another place. The message is simple and easily understood. Be quiet or risk trouble.”

How true. We are more in danger of remaining apathetic to threats to our freedom when the individual threats just don’t appear to be a big deal. The danger is in the accumulation, though. Hopefully, for many, this latest “increment” will be too big to ignore.

The Fourth Circuit Gets It Fundamentally Wrong on Marriage

by Chris Gacek

August 1, 2014

On Monday a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit in Richmond upheld a federal district court’s decision from February 2014 declaring Virginia’s male-female marriage definition to be unconstitutional. In Bostic v. Schaeffer, the Court of Appeals ruled that Virginia’s “Marriage Laws,” including its electorally-enacted constitutional provision defining marriage, “warrant strict scrutiny due to their infringement of the fundamental right to marry.” Upon further analysis the court’s majority opinion, written by Judge Henry Floyd and joined by Judge Roger Gregory, concluded that these marital provisions were not supported by a sufficiently strong rationale to withstand heightened constitutional scrutiny.

The key fighting ground between the court’s majority and the dissenter, Judge Paul Niemeyer, lay in how to analyze the question of whether Virginia’s Marriage Laws infringed on a fundamental constitutional right held by same-sex couples. This is not a new type of question for federal courts to consider. When assessing whether a claimed right is fundamental under the Due Process Clause, the Supreme Court looks to a two-part test promulgated in its landmark 1997 ruling, Washington v. Glucksberg.

First, the court should asses a “careful description of the asserted fundamental liberty interest.” The claimed right must be described precisely. Second, such rights must be “deeply rooted in this Nation’s history and tradition.” Furthermore, the right must be “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” It is at this point that the majority made a disastrous error.

The critical step lies in how one defines the right, and the majority defined it incorrectly. The majority did “not dispute” that “states have refused to permit same-sex marriages for most of our country’s history.” Yet, this fact was deemed “irrelevant” here “because Glucksberg’s analysis applies only when courts consider whether to recognize new fundamental rights.” The Bostic court somewhat dishonestly side-stepped the strictures of Glucksberg by concluding that “the fundamental right to marry encompasses the right to same-sex marriage.” (p.41) The right to marry is well recognized as a fundamental right, but the majority interpreted the Supreme Court’s precedents in this area to “speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise the right.”

As the dissenting judge, Paul Niemeyer, pointed out, this must be false:

At bottom, in holding that same-sex marriage is encompassed by the traditional right to marry, the majority avoids the necessary constitutional analysis, concluding simply and broadly that the fundamental “right to marry”—by everyone and to anyone—may not be infringed. And it does not anticipate or address the problems that this approach causes, failing to explain, for example, why this broad right to marry, as the majority defines it, does not also encompass the “right” of a father to marry his daughter or the “right” of any person to marry multiple partners. (pp. 67-8)

Analyzed properly, the claimed right is not the right to marry with marriage defined all-inclusively, but rather, the right to marry a person of the same-sex. Of course, as the court conceded (above), states had not begun to recognize same-sex marriages until recent times. In actuality, such marriages have been allowed only since 2004 in a nation dating back to 1789. Same-sex marriage, as an institution recognized anywhere in the United States, is younger than Google and Facebook.

Enough said. Applying Glucksberg, there is clearly no fundamental constitutional right to enter into a same-sex marriage.

In closing, one offensive aspect of the majority opinion needs to be commented upon: its last sentence. In concluding its opinion, the court observed, “Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.” (p. 63) Using “segregation” here advances the calumny that opposition to same-sex marriage is akin to supporting racial segregation. That slur doesn’t even make sense.

The opposite sex composition of the marital relationship is the essential feature of what “marriage” is because true marriage allows for the union of one male human being and one female human being in a complementary sexual relationship that has the potential to produce children. It is the joining of embodied maleness and femaleness in a relationship that can sustain the nurture of children should they be produced.

No same-sex relationship has either capacity. Defining marriage as reality reveals allows for liberation to enter a great design. Segregation it is not.

Wedding Belle Blues

by Robert Morrison

July 17, 2014

My wife and I were invited to a nice wedding. The reception for this event in the South was a most elegant affair. I enjoyed sampling the new and different foods and drink. Moving around the historic outdoor location on the water, I enjoyed exchanging pleasantries with the genial crowd of well-wishers.

Until, that is, I was accosted. A beautiful lady whom we and our friends knew socially from our town made a beeline for me. She had asked others if I still worked for that group. I hadn’t seen “Petra” in the years since she moved away, but I greeted her warmly.

You’re losing, you know,” she said, referring to Family Research Council’s fight to preserve true marriage. Realizing that others may be watching and not wanting to create a scene, I simply smiled and said, “Well, Washington, Lincoln, and Churchill were all losing for a while.”

Petra was not amused. Unsmiling, she said, “It’s all about Marriage Equality.” Warming to the topic, I replied: “So you are okay with twin brothers who are gay marrying? Is that your idea of marriage equality, too?”

Why would they want to?” she said, not taking the bait.

But if they do want to, you would not have a legal objection to their marrying. They truly love each other and have had a continuing relationship since before they were born. So that’s good?”

Clearly, she thought I was playing the fool. She didn’t want to continue down the clear path to what would be my next point: If twin brothers may marry, why not a twin brother and sister? And how about three spouses?

Fanciful? Not really. Prof. Jonathan Turley of George Washington University Law Center has already pressed openly for polygamy. He rushed into federal court in Utah to have that state’s anti-polygamy law struck down—as soon as the U.S. Supreme Court had ruled in Windsor that the federal definition of marriage in the Defense of Marriage Act was unconstitutional.

I knew that the marriagenders don’t just want to expand or re-define marriage; they want to abolish it. In fact, they’ve said so in their manifesto, “Beyond Marriage.” You can read their plan to destroy marriage here.

Petra changed topics. “I suppose you think fetuses have property rights?” She wanted to drag me into the debate on personhood of the unborn. I replied: “The unborn child’s inheritance rights have been recognized in law for centuries.”

Then, I got inspired, especially considering these lovely surroundings and this glittering company:

Petra, you remember the scene in Downton Abbey where Lady Grantham is getting out of her tub?” (All liberals watch the great English soap opera, shown in the US on PBS.)

I continued: “Her maid, O’Brien, puts a bar of soap on the floor and the pregnant Lady Grantham falls. Her fall causes her to suffer a miscarriage. She might have been carrying the heir to the Downton Abbey estate. We are all meant to see this as a wrong and O’Brien as an evil woman for causing this death.”

Petra is not happy with this turn of the conversation as it heats up. She is beginning to get angry I can see—very angry.

Then it dawned on me: In her social set, she probably never had anyone disagree with her politically correct notions before. Thus, the fury.

They don’t need reasons; they only need rage.

Then, the ladies of our group—like an intrepid bomb disposal unit—intervene to take Petra away. They want to show her the fresh waffle cone making for the homemade ice cream.

Petra’s husband “Walt” takes me by the arm in a brotherly way. He is a fundraiser for a major college. His manner is of a practiced and soothing smoothness.

With hearty goodwill, he waves his arm and airily pronounces: “You know, this whole thing could be solved if we just got rid of marriage in the law and adopted civil unions. That’s the reasonable solution,” Walt pronounces.

I’m actually enjoying this back-and-forth. Agreeably as I can, I rejoin: “Except that the California Supreme Court used that state’s civil unions law as their pretext for overturning the marriage law that the people had voted on. They ruled that, since California gives all the same privileges and immunities to same-sex couples through civil unions, there is no rational basis to deny them marriage.”

Walt seems unfazed by this inconvenient truth. So what do I think about the view? And the weather? Both are superlative, I assure him. We drift apart.

An hour later, as my wife and I were preparing to go, I mentioned to our small knot of friends that I’d like to say goodbye to Petra and Walt and pay them my respects.

Someone in our group says Bob wants to “apologize.” I try not to be disagreeable or contentious in this amicable social setting. But, still smiling, I assure our friends I want to apologize for nothing. I will never apologize for standing for marriage.

And neither should anyone else.

The Tenth Circuit’s Kitchen v. Herbert Flubs Fundamental Rights Analysis

by Chris Gacek

June 26, 2014

Yesterday, the U.S. Court of Appeals for the Tenth Circuit affirmed a federal district court’s decision striking down the definition of marriage found in Utah’s constitution. That definition limited Utah marriages to the union of one man and one woman. It was approved by referendum in November 2004 with 65.9% of the vote. In Kitchen v. Herbert, a 2-1 majority court struck down that definition by concluding, among other things, that there is a fundamental right to enter into a same-sex marriage. There is much more to the decision, but this note will focus on this key aspect of opinion.

As the U.S. Supreme Court instructed in Washington v. Glucksberg, 521 U.S. 702 (1997), the Due Process Clause of the Fourteenth Amendment guarantees more than fair process. It “also provides heightened scrutiny against government interference with certain fundamental rights and liberty interests.” Id. at 720. But, how does one determine what rights and interests are “fundamental?” Glucksberg is the key case in setting forth the constitutional law in this area.

Paul Linton summarized the Glucksberg standard in the Family Research Council’s amicus brief in Kitchen (pp. 3-5) (edits to text, notes, and citations have been made below):

In determining whether an asserted liberty interest (or right) should be regarded as fundamental for purposes of substantive due process analysis under the Due Process Clause of the Fourteenth Amendment[] (infringement of which would call for strict scrutiny review), the Supreme Court applies a two-prong test. First, there must be a “careful description” of the asserted fundamental liberty interest. Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Second, the interest, so described, must be firmly rooted in “the Nation’s history, legal traditions, and practices.” Id. at 710. ….

As in other cases asserting fundamental liberty interests, it is necessary to provide a “careful description” of the fundamental liberty interest at stake. For purposes of substantive due process analysis, therefore, the issue here is not who may marry, but what marriage is. The principal defining characteristic of marriage, as it has been understood in our “history, legal traditions, and practices,” is the union of a man and a woman. Properly framed, therefore, the issue before this Court is not whether there is a fundamental right to enter into a marriage with the person of one’s choice, but whether there is a right to enter into a same-sex marriage. ….

This is the point at which the majority opinion runs off the rails. It dodges the hard edge of Glucksberg requiring a tight, accurate definition of the claimed right. The Kitchen court goes in another direction asserting baldly (p. 35), “But we cannot conclude that the fundamental liberty interest in this case is limited to the right to marry a person of the opposite sex.” They cannot do so because they will not to do so.

Of course, there is a fundamental right to marry a person of the opposite sex. See Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967). And, homosexuals are not precluded from marrying in any state. But, what is this national debate about? It is about the definition of marriage. Homosexual men and women assert that the laws of over thirty states should be nullified because, among other things, there is a fundamental right to marry members of the same sex. Furthermore, all states must be compelled to recognize male-male and female-female marriages.

Returning to the Glucksberg test it is manifestly clear that there is no such fundamental right, for it must be deeply embedded in “the Nation’s history, legal traditions, and practices.” How can this be possible with the claimed fundamental right to same-sex marriage? There is nothing about it that is firmly grounded in this country’s history, legal tradition, and practices. There were no same-sex marriages anywhere in the United States until the 21st Century.

Google is older than same-sex marriage.

There is a Supreme Court case that is instructive here, and it is Baker v. Nelson, 409 U.S. 810 (1972). Much blood in the same-sex marriage debate has been spilled over this case. In Baker, the Supreme Court dismissed an appeal from a decision by the Minnesota Supreme Court which had rejected arguments for same-sex marriage similar to those being considered presently in our courts. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971).

The U.S. Supreme Court declined the invitation to consider the matter stating that there was a “want of a federal question.” It has been argued that Baker precludes lower federal courts from even considering these issues, but federal courts have brushed aside those arguments, especially in the post-Windsor environment. It should be noted that the dissenting judge in Kitchen did accept this argument. Judge Kelly would have dismissed the case and left it for the U.S. Supreme Court to decide whether it wanted to revisit this area of the law. That seems like the correct approach.

Laying aside the argument that Baker requires a dismissal by lower courts, Baker is highly instructive in answering whether any claimed right to same-sex marriage is “fundamental.”

In 1972, the fundamental right argument was presented to the U.S. Supreme Court, and it was rejected – as it had been in Minnesota. Because Glucksberg tells us that fundamental rights must be rooted in our nation’s legal history and traditions, such a right should have been extant only forty-two years ago when the Supreme Court considered the Baker appeal. Fundamental right questions are dyadic – you either have one, a 0, or not, a 1. Baker gives us the Supreme Court’s answer in 1972: 0. Both courts had the constitutional issues presented in a manner we would recognize today. The Minnesota Supreme Court quoted Loving noting “there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Baker, 291 Minn. at 315 (concluding the court’s equal protection analysis and discussing Loving).

Thus, the Baker Court had the core legal concepts and precedents before it that we now routinely see in same-sex marriage litigation (e.g., fundamental rights claim, arguments based on Loving), and it dismissed the appeal.

Of course, there are equal protection arguments to also consider, but one must reasonably conclude that the Kitchen majority’s fundamental rights analysis fails badly. This point is underscored by footnote 4 of the FRC amicus brief in Kitchen which provides a lengthy list of courts that have rejected the argument that any fundamental rights (Due Process) analysis supports the claims of the Utah plaintiffs challenging the state’s natural marriage definition.

Press Release: Courts Will Not Have Final Say on Marriage

by FRC Media Office

June 25, 2014

WASHINGTON, D.C.- Family Research Council (FRC) President Tony Perkins released the following statement in response to two rulings today - one being a two-to-one ruling from a 10th Circuit Court of Appeals panel striking down Utah’s marriage amendment and another one from a federal judge striking down Indiana’s Defense of Marriage Act:

While disturbing, today’s rulings come as no surprise given the rising disdain for the rule of law promoted by the Obama administration. These latest rulings are not just about redefining marriage but they are a further attempt by the courts to untether our public policies from the democratic process, as well as the anthropological record.

While judges can, by judicial fiat, declare same-sex ‘marriage’ legal, they will never be able to make it right.  The courts, for all their power, can’t overturn natural law. What they can do is incite a movement of indignant Americans, who are tired of seeing the foundations of a free and just society destroyed by a handful of black-robed tyrants. The Left has long believed packing the federal courts with liberal jurists is the means of fulfilling a radical social agenda, as the American people refuse to endorse that agenda at the polls or through their elected representatives.

As we saw with Roe v. Wade in 1973 - despite the Left’s earnest hopes, the courts do not have the final say. The American people will have the final word as they experience the consequences of marriage redefinition and the ways in which it fundamentally alters America’s moral, cultural and political landscape,” concluded Perkins.

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