Tag archives: SCOTUS

Four Short Observations about Justice Kennedy’s Opinion on Same-Sex Unions

by Rob Schwarzwalder

June 26, 2015

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

Overview of Obergefell v. Hodges: Supreme Court Discards Voters’ Views on Marriage

by Travis Weber

June 26, 2015

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.

Majority Opinion

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.

Due Process

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.”

Equal Protection

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.”

He continues:

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.

He concludes:

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.”

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.

Obamacare at the Supreme Court: An Analysis by Ken Klukowski

by Family Research Council

April 2, 2012

For a complete look at last week’s U.S. Supreme Court hearings on the 2010 healthcare law, see Ken Klukowski’s columns at Breitbart.com below. Klukowski, the director ofFRC’s Center for Religious Liberty, was present in the Court for each day’s proceedings. He authoredFRC’s amicus briefs in the various Obamacare lawsuits.

Day 1: Whether the Court has jurisdiction to decide the case

http://bit.ly/Hj2jmK

Day 2: Whether the individual mandate is unconstitutional

http://bit.ly/Hhu4iO

Day 3, morning: Whether the entire law must be struck down (Severability)

http://bit.ly/HgCrWZ

Day 3, afternoon: Whether Obamacare’s Medicaid expansion is unconstitutional

http://bit.ly/H4lZK2

Inside courtroom perspective during argument watching the legal left freak out

http://bit.ly/H2NXHq

David Souter: Unsung and Unhung

by Robert Morrison

May 29, 2009

Nineteen years on the U.S. Supreme Court and David Souter retires like Rodney Dangerfield: He gets no respect. When the liberal press does praise him, it’s for his logic. Really? Let’s parse the premier sample of his logic. He’s credited with the co-authorship of what has been termed the “Mystery of Life” passage in the 1992 ruling in Planned Parenthood v. Casey:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Justice Scalia has made wicked sport of this passage. “Ah, the sweet mystery of life passage…” he says—and then he pounces: “…the passage that ate the rule of law.” Ate it, the co-authors-Souter, O’Connor, and Kennedy—did indeed.

If we analyze that passage, we understand that it must be written about abortion. If we applied it to any other area of life or law, we would instantly take it for the absurdity it is.

Do we really accord everyone the right to define his own concept of existence? Do we then permit all to act upon their self-defined concept of existence?

It may seem harmless for a shortish gentleman in knee breeches, his hand in his waistcoat, and a spit curl in the center of his forehead to think he’s the Emperor Napoleon. But if he actually acts upon his self-defined concept of existence by invading Russia, we go after him with a net.

Imagine, for a moment, we catch Osama bin Laden today. By this evening, he’ll be assigned a government lawyer. Suppose that lawyer has read Justice David Souter’s logical prose in Casey. How could we then prosecute the furry terrorist for his crimes? Was he not simply defining his own concept of meaning, of the universe, and of the mystery of human life? Suppose one’s concept of the universe is a universe without Israel or the U.S.? That’s “the heart of liberty” for Ahmadinejad and his supporting cast of mullahs in Tehran. Who are we to say they’re wrong?

So much for the vaunted logic of Justice David Souter. It’s curious, too, that of the three co-authors of the “plurality opinion” in Casey, neither Souter, nor Sandra Day O’Connor, nor Anthony Kennedy seems to have stepped forward to claim sole credit for that passage of supreme silliness.

Prof. Paul Kengor of Grove City College followed the Souter nomination and his long years of gray eminence on the high court. Kengor read the memoirs of former New Hampshire Sen. Warren Rudman. (You know that Prof. Kengor must be a serious scholar. Has anyone else ever read the memoirs of Warren Rudman?) Dr. Kengor describes Rudman’s encounter with Sen. Joe Biden. They met the day in 1992 when Souter joined his colleagues in issuing the Planned Parenthood v. Casey ruling that kept abortion-on-demand legal in America:

As fate would have it, Sen. Rudman and Sen. Joe Biden bumped into each other at the train station, not in Washington, DC but in Wilmington, Delaware.

At first, I didn’t see Joe; then I spotted him waving at me from far down the platform,” Rudman later recorded in his memoirs, Combat: Twelve Years in the U.S. Senate. “Joe had agonized over his vote for David, and I knew how thrilled he must be. We started running through the crowd toward each other, and when we met, we embraced, laughing and crying.”

An ecstatic Biden wept tears of joy, telling Rudman over and over: “You were right about him [Souter]! … You were right!”

The two men were so jubilant, so giddy-practically dancing-that Rudman said onlookers thought they were crazy: “[B]ut we just kept laughing and yelling and hugging each other because sometimes, there are happy endings.”

You were right, Biden told Rudman. What did Rudman tell his fellow New Hampshireman, Gov. John Sununu? Sununu was the White House Chief of Staff. What did Sununu tell President George H.W. Bush? We know what Bush told us. Somewhere in this shabby tale, someone is lying. Rudman knew what Souter thought about abortion. Rudman told Biden.

I didn’t know what Souter thought—about abortion or about almost anything else. The man was close to being a blank slate. He sailed through his confirmation hearings mouthing platitudes. I recall watching the faces of the pro-life lobbyists outside the Senate Judiciary Committee hearing room. I looked at one of them for some sign. What I got was a look of complete exasperation. Who knows?

My wife knew, or at least she figured it out pretty quickly. Sitting across the breakfast table the Saturday after Souter was confirmed to the high court, my good wife snipped a little squib from the “Style” section of The Washington Post and silently handed it to me. It read: “Newly confirmed Supreme Court Justice David Souter went grocery shopping in his new neighborhood of Georgetown this week.” What I read next caused my heart to sink: “He asked the cashier at the corner market if the can of tuna he’d just bought was ‘dolphin safe.’”

As an ex-Coast Guardsman, I had helped enforce federal laws against the killing of whales and dolphins. I supported those laws out of a heart’s conviction. But I was experienced enough in politics to know that most of those who are vocal about saving the whales are blithely unconcerned about harpooning unborn children.

So David Souter proved to be. Tens of millions of extinguished human lives later, he exits the court—not a minute too soon. Souter’s departure brings to mind Churchill’s dismissal of a long-forgotten foe: “He escapes unsung and unhung.”

Sotomayor: A Policy Maker or a Jurist?

by JP Duffy

May 26, 2009

Here is Tony Perkins’ statement on President Obama’s nomination of Judge Sotomayer. Her record makes one wonder… is she a legislator or a jurist?

FOR IMMEDIATE RELEASE: May 26, 2009 CONTACT: J.P. Duffy or Maria Donovan, (866) FRC-NEWS

Sotomayor: A Policy Maker or a Jurist?

Washington, D.C.- This morning President Obama announced his nominee to the nation’s highest court, Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit. Family Research Council Action President Tony Perkins released the following statement:

President Obama has chosen a nominee with a compelling personal story over a judicial pick with a solid constitutional judicial philosophy. A compelling personal story is no substitute for allegiance to the Constitution and its sound application to public life.

Judge Sotomayor’s failure to premise her decisions on the text of the Constitution has resulted in an extremely high rate of reversal before the high court to which she has been nominated.

With that fact in mind Judge Sotomayor appears to subscribe to a very liberal judicial philosophy that considers it appropriate for judges to impose their personal views from the bench. President Obama promised us a jurist committed to the ‘rule of law,’ but, instead, he appears to have nominated a legislator to the Supreme Court.

For example, in 2001 when delivering the Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California-Berkeley Law School, Sotomayor stated: ‘I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.’

Needless to say, that statement is troubling - if not offensive - on many levels. As the distinguished legal reporter Stuart Taylor of the National Journal observed about that speech and of Sotomayor, ‘her thinking is representative of the Democratic Party’s powerful identity-politics wing.’

In a 2005 panel discussion at the Duke University Law School that can be seen on YouTube and cable news channels, the judge stated that the U.S. Court of Appeals is ‘where policy is made.’

With all due respect to Judge Sotomayor, our constitution states otherwise and public surveys indicate that the American public understands this constitutional principle and want judges who interpret the law and do not act as life-tenured judicially empowered social workers.

The Family Research Council expects the members of the Senate Judiciary Committee and the entire Senate to fully examine and publicly present an accurate picture of Judge Sotomayor’s judicial philosophy to the American public before they vote on her nomination.”

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