Tag archives: v.

Constitutional Resistance to Obergefell v. Hodges

by Travis Weber

October 13, 2015

Last week, a number of scholars and law professors released a statement calling on all officeholders to resist — within the grounds of their own constitutional authority — the Supreme Court’s illegitimate and groundless ruling in Obergefell v. Hodges. The scholars’ statement points to the grave consequences of letting this decision continue to be treated as legitimate and binding precedent on the entire nation, and urges public officials to exercise their independent authority to follow the Constitution regardless of Obergefell’s dubious claims:

One lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States.

The authors of the statement remind us that the Supreme Court is not the only branch of government granted authority by the Constitution. While the Supreme Court has the authority and responsibility to decide cases and controversies between parties, it does not have the authority to declare entirely new doctrines of law binding on parties not before the court.

Quoting President Lincoln, the authors observe:

In 1857, Abraham Lincoln said, “Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.” If a decision “had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.” If, however, a decision is “wanting in all these claims to the public confidence,” it is “not factious” to resist it.

The authors quite understandably conclude that “Obergefell is wanting in all these claims to the public confidence. It cannot therefore be taken to have settled the law of the United States.”

They conclude:

The proper understanding and definition of marriage is self-evidently a vital question affecting the whole people. To treat as “settled” and “the law of the land” the decision of five Supreme Court justices who, by their own admission, can find no warrant for their ruling in the text, logic, structure, or original understanding of the Constitution, would indeed be to resign our government into the hands of that eminent tribunal. That is something that no citizen or statesman who wishes to sustain the great experiment in ordered liberty bequeathed to us by our Founding Fathers should be willing to do.

At Family Research Council, we recognize the Supreme Court as the highest court in the land, charged with adjudicating disputes between parties and determining those parties’ rights under the Constitution. However, the Supreme Court lacks the authority to decide the meaning of certain matters, one of which is an institution — marriage — which predates civil government and is only defined by God.

This must not be forgotten — neither by public officials nor those they are supposed to serve.

What Loving Means

by Peter Sprigg

June 12, 2015

June 12 has been dubbed “Loving Day.” No, it is not an effort to compete with Valentine’s Day. “Loving Day” commemorates the anniversary of a Supreme Court decision — in the 1967 case of Loving v. Virginia — in which the court declared that state laws barring interracial marriage were unconstitutional. Advocates for redefining marriage to include same-sex couples argue that this case is precedent for striking down state laws that define marriage as the union of a man and a woman.

Richard Loving, a white man, had married Mildred Jeter Loving, a black woman, in the District of Columbia. They later moved to Virginia; but in 1958, police officers entered their house in the middle of the night and demanded to know, “What are you doing in bed with this lady?” Although the Lovings had their marriage certificate hanging on the wall, the sheriff was unimpressed, declaring, “That’s no good here.” The couple was jailed for five days, after which a judge accepted their guilty plea to a charge of violating the state’s anti-miscegenation statute. They were given the choice of spending a year in jail or leaving the state. They chose to return to D.C.— and then filed suit to overturn their conviction. The Lovings were vindicated by a unanimous Supreme Court nine years later.

California’s Supreme Court had already struck down a similar statute nineteen years earlier (Perez v. Sharp, 1948). That court had declared that “the essence of the right to marry is freedom to join in marriage with the person of one’s choice.” Homosexual activists claim that this is precisely the principle that should apply to their efforts to marry a chosen person of the same sex.

There is a certain logic to this argument. Laws against same-sex marriage do restrict a person’s choice of marriage partner, as did laws against interracial marriage. But the flaw in the argument is that no one — not even the most radical advocate of homosexual marriage — is proposing to eliminate all restrictions on one’s choice of marriage partner. Every state forbids marriage to specific classes of people — namely, those who are already married, children, or certain close blood relatives.

The point, then, of the cases on interracial marriage cannot have been that restrictions on marital choice are unacceptable across the board. It was, rather, more specifically that race was not a legitimate basis for imposing such a restriction.

The constitutional basis of the case against the “anti-miscegenation” laws was that they violated the 14th Amendment’s equal protection clause, which states that no state may “deny to any person within its jurisdiction the equal protection of the laws.” Courts have ruled that this does not mean states can never have laws that treat some people differently from others, but those distinctions must have a reason and cannot be arbitrary.

It is worth reading an excerpt from the court’s decision in Loving (citations omitted or abbreviated). This was the conclusion of the Court’s Equal Protection analysis:

The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.

There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” Korematsu v. United States (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they “cannot conceive of a valid legislative purpose … which makes the color of a person’s skin the test of whether his conduct is a criminal offense.” McLaughlin v. Florida.

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

Just in these short paragraphs there are references to “racial discrimination,” “distinctions drawn according to race,” “ancestry,” “racial classifications,” “the color of a person’s skin” — a dozen such references in all. This should be sufficient to demonstrate that Loving was not based on a generalized right to marry “the person of your choice,” but was rather based specifically on the Constitution’s clear prohibition of state-sponsored discrimination based on race.

Advocates for redefining marriage have also argued that same-sex couples have been denied the “fundamental right to marry,” an interest in “liberty” that courts have found to be implicit in the 14th Amendment’s “Due Process” clause, which says that no state shall “deprive any person of life, liberty, or property, without due process of law . . .”

Advocates of marriage redefinition point out that Loving was based on a “due process/fundamental right” argument, not just an equal protection one. True — but here is the entire text of the Court’s fundamental rights analysis in Loving:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, (1942). See also Maynard v. Hill, (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

This part of the opinion was a scant 169 words out of over 2,500 in the decision. However, it, too, makes reference to “racial classifications” and “invidious racial discriminations.” There is thus no reason to believe that Loving forbids classifications on some basis other than race.

Numerous courts considering same-sex “marriage” lawsuits have rejected the Loving analogy. As the judge in a 2003 Indiana case (Morrison v. Sadler) noted, “Anti-miscegenation laws, because they interfered with the traditional marriage relationships in pursuit of opprobrious racial segregation policies, had no legitimate connection to the institution of marriage itself… . [W]hatever else marriage is about, it is not about racial segregation.” In contrast, however, “restrictions against same-sex marriage reinforce, rather than disrupt, the traditional understanding of marriage as a unique relationship between a woman and a man. Marriage traditionally and definitionally has had to do with the sex of each participant.”

A Superior Court in New Jersey came to a similar conclusion in a similar case (Lewis v. Harris) in 2003:

Plaintiffs’ reliance on decisions striking down statutes that prohibit interracial marriage is misplaced. These decisions derive from Constitutional amendments prohibiting racial discrimination and subjecting laws that classify individuals based on race to the highest level of scrutiny. No similar Constitutional provisions outlaw statutory classifications based on sexual orientation … . Comparing the State’s marriage statutes to laws perpetuating racial prejudice, therefore, is inapposite.

Individuals challenging bans on interracial marriage had a powerful weapon: Federal Constitutional provisions, passed by Congress and adopted by State Legislatures, that expressly prohibited States from denying recognized rights based on race. It was entirely appropriate for the courts to enforce those duly enacted Constitutional provisions by striking down statutes that made race a qualifying condition for access to a recognized right to marry. Plaintiffs, on the other hand, assert their claims in the absence of express Constitutional provisions supporting their position, and ask the court to circumvent the Legislative process by creating a right that has never before been recognized in this country.

The mandate for racial equality is firmly enshrined in both the Federal and State Constitutions. Importantly, two amendments to the United States Constitution expressly address racial equality [the 13th and 14th]… .

The Supreme Court’s decision in Loving v. Virginia is predicated entirely on the Fourteenth Amendment’s prohibition of racial classifications… .

No similar Constitutional provision accords heightened protection to individuals who claim that statutes discriminate on the basis of sexual orientation… .

… [P]laintiffs … lack the significant legal foundation that was available to the plaintiffs in Loving to demand judicial recognition of the rights they seek.

In November 2014, a panel from the U.S. Court of Appeals for the Sixth Circuit upheld one-man-one-woman marriage laws in Michigan, Ohio, Kentucky, and Tennessee. It is the appeal of these cases (consolidated under the case name Obergefell v. Hodges) which is now before the Supreme Court.

The Sixth Circuit panel noted another compelling reason for questioning whether Loving provides a precedent for allowing same-sex couples to legally “marry.” In 1972, a case out of Minnesota (Baker v. Nelson), making the same claims for same-sex “marriage” now being asserted, was appealed to the Supreme Court. It dismissed the case “for want of a substantial federal question,” a disposal which provides a binding precedent on all lower courts. It is irrational to claim that Loving established a right to same-sex “marriage,” when the Supreme Court already rejected that argument five years after Loving was decided:

Matters do not change because Loving v. Virginia held that “marriage” amounts to a fundamental right. When the Court decided Loving, “marriage between a man and a woman no doubt [was] thought of … as essential to the very definition of that term.” Windsor, 133 S. Ct. at 2689. In referring to “marriage” rather than “opposite-sex marriage,” Loving confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples. Loving did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” a reference to the procreative definition of marriage. Had a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.

Natural Marriage Builds Bridges, Not Walls

The clear purpose of the bans on interracial marriage was to build walls between two groups of people in society, blacks and whites. Such laws were designed to reinforce a system of racial segregation, keeping the races apart from one another.

In contrast, defining marriage as the union of male and female has exactly the opposite intent and effect. Rather than building walls between two classes of people, it creates a bridge across the most fundamental gap in humanity — the gap between male and female. Bridging the divide of the sexes by uniting men and women in marriage is common to all human civilizations, and serves the good of society.

Interracial marriage does not change the definition of marriage, and laws against interracial marriage had as their only purpose preserving a social system of racial segregation.

Homosexual “marriage,” on the other hand, changes the fundamental definition of the institution, and would form at least three segregated forms of marriage: male-only unions, female-only unions, and opposite-sex unions.

Legally defining marriage as the union of one man and one woman does not burden the institution of marriage. Instead, it preserves marriage’s nature and purpose. Homosexual marriage is not a “civil right,” it is a political demand that should be denied.

Note: Portions of this post were excerpted from Peter Sprigg’s book Outrage: How Gay Activists and Liberal Judges are Trashing Democracy to Redefine Marriage (Washington, DC: Regnery Publishing, Inc., 2004).

FRC Files Amicus Brief in Reed v. Town of Gilbert

by Travis Weber

September 22, 2014

Today, Family Research Council filed an amicus brief with the U.S. Supreme Court in the case of Reed v. Town of Gilbert.

In this case, a Gilbert, Arizona sign ordinance discriminated against certain signs based on the content of the signs — whether they were political, ideological, and directional. Directional signs were placed under more severe restrictions.

A local church — Good News Community Church — and its pastor — Clyde Reed – needed to announce the times and locations of their services, but because their announcement signs (which directed individuals to a public school were services were being held) were deemed directional, the church was severely hampered in getting its message out.

Pastor Reed and Good News Community Church sued to vindicate their constitutional rights. The lower courts ruled against them, so they have now taken their case to the Supreme Court.

In our brief, filed in support of Pastor Reed and Good News Community Church, we argue that the town does regulate signs differently based on their content, for politics, ideology, and directions are all matters of differing content. Well-established Supreme Court jurisprudence bars content-based restrictions on speech unless the government can meet strict scrutiny — which says that unless the government regulation advances a compelling government interest, and this is done in the least restrictive way possible – the government regulation cannot stand. We conclude that because there are content-based restrictions on speech in this case, the Supreme Court should send this case back to the district court to determine if the town can meet strict scrutiny.

A win for Pastor Reed and Good News Community Church in this case will help advance a strong interpretation of First Amendment free speech rights, which is good not only for small congregations like Good News Community Church, but for all who wish to speak free from government interference. Ensuring an open marketplace of ideas in which all voices are protected and can speak freely is what the First Amendment is all about.

Our press release is here, and our brief can be read here.

Schuette, Marriage, and Democratic Rights

by Travis Weber

April 25, 2014

What do all these things have to do with one another? On April 22, 2014, in Schuette v. BAMN, the Supreme Court ruled on a constitutional challenge to a Michigan ballot measure providing that its state government, along with universities and schools, “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin… .” Opponents claimed that such a measure violated the Equal Protection Clause of the Fourteenth Amendment on the grounds that it prevented race-based preferences which were needed to achieve equality. Proponents claimed a measure mandating equal protection under the law regardless of race could not possibly violate the Equal Protection Clause. Without deciding the issue of whether race-based preferences themselves were constitutional, in an opinion authored by Justice Kennedy, the Court distinguished this case from others in which a law was enacted to address a specific history of discrimination, and sided with the proponents in holding that this law mandating equal treatment did not violate the Equal Protection Clause. But how did the Court really get there?

While the case carried with it much emotion, and dragged around a legal thicket of cases dealing with race-based preferences in education, Justice Kennedy’s decision was remarkable in weighing heavily in favor of permitting voters to decide how their states will handle difficult and sensitive public policy issues. It is true, as the Court reminded us, that constitutional rights must be respected and cannot be overridden by the voters. But “[t]here was recognition that our federal structure “‘permits innovation and experimentation’ and ‘enables greater citizen involvement in democratic processes.’”Scheutte v. BAMN, 572 U.S.___ (2014) (slip op., at 4-5) (quoting Bond v. United States, 564 U.S.__ (2011) (slip op., at 9)).

Consider the following reasoning by Justice Kennedy, which could just as well be applied to a challenge to a state marriage law:

  • ‘[T]he States may perform their role as laboratories for experimentation to devise various solutions… .’” Schuette, slip op., at 4 (quoting United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring)).
  • [Windsor] Grutter acknowledged the significance of a dialogue regarding this contested and complex policy question among and within States.” Schuette, slip op., at 4.
  • While this case arises in Michigan, the decision by the State’s voters reflects in part the national dialogue regarding the wisdom and practicality of [legalizing same-sex marriage] race-conscious admissions policies in higher education.” Schuette, slip op., at 5.
  • Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that [a preference for natural marriage] race-based preferences should be adopted… . The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow. In the realm of policy discussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited. And if these factors are to be interjected, surely it ought not to be at the invitation or insistence of the courts.” Schuette, slip op., at 13.
  • The Court, by affirming the judgment now before it, in essence would announce a finding that the past 15 years of state public debate on this issue have been improper.”
  • By approving Proposal 2 and thereby adding §26 to their State Constitution, the Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power. In the federal system States respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times. Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of [how to define marriage for their own state] granting race-based preferences that raises difficult and delicate issues.” Schuette, slip op., at 15 (internal citation and quotation marks omitted).
  • Yet freedom does not stop with individual rights. Our constitutional system embraces, too, 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 and the course of a nation that must strive always to make freedom ever greater and more secure. Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject [touching upon how states will define the foundational institution of marriage] against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.” Schuette, slip op., at 15-16.
  • The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process 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. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use [sexual] racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. 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. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.” Schuette, slip op., at 16-17.
  • The electorate’s instruction to governmental entities not to embark upon the course of race defined and race-based preferences was adopted, we must assume, because the voters deemed preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it.” Schuette, slip op., at 18.
  • This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.” Schuette, slip op., at 18.
  • Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Schuette, slip op., at 18.

This is strong language from the Court justifying its decision to leave sensitive public policy issues for the voters of each state to decide. The Court should apply the same reasoning to any challenge to a state marriage law. Apart from the lack of support for a federal constitutional right to same-sex marriage, this is a sensitive issue touching on how communities within America choose to live and organize themselves. The Court shows wisdom in staying out of such issues in Scheutte, and it should stay out of such issues in the context of state marriage laws.

Justice Kennedy’s justifications for declining to involve the Court in classifying racial groups according to their interests is also of some relevance to marriage. If courts should not determine the interest of groups as regards race because such a “venture not only would [] be undertaken with no clear legal standards or accepted sources to guide judicial decision but also it would result in, or at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms,” Schuette, slip op., at 12, why should the court not also avoid perpetuating “classifications of questionable constitutionality” in the same-sex marriage context?

Consider the following:

  • The Court properly refused to review under strict scrutiny “[a]ny state action with a ‘[marriage] racial focus’ that makes it ‘more difficult for certain [marriage] racial minorities than for other groups’ to ‘achieve legislation that is in their interest.’”
  • In essence, according to the broad reading of [Windsor] Seattle, any state action with a “[sexual] racial focus” that makes it “more difficult for certain [sexual] racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny. It is this reading of [Windsor] Seattlethat the [district courts] Court of Appeals found to be controlling here. And that reading must be rejected.”

If providing minority groups with the advantage of constitutional strict scrutiny in order to achieve legislation “that is in their interest” would not be considered constitutionally required, Schuette, slip op., at 11, it must be asked: why bless with strict scrutiny the almost identical claims of same-sex marriage groups, though they be in the minority, are “legislatively disadvantaged,” and certainly have had difficulty in achieving their “interests” legislatively?

Indeed, it is precisely because they’ve had only limited success in state legislatures that proponents of same-sex marriage have sought constitutional rulings in order to ensure these “matters [are] foreclosed from voter review or participation.” Schuette, slip op., at 13. “Including” a right to same-sex marriage in the Constitution will ensure that no states’ rights are protected, voters will grow disenfranchised at being shut out of the political process, and states will be denied their place as “laboratories” according to the design of the federal constitutional structure.

Despite lower courts’ attempts to twist their way out of the law, well-settled Supreme Court jurisprudence has always mandated the result that the Constitution does not provide a right to same-sex marriage. No such right is enumerated, and cannot now be invented at this time. Washington v. Glucksberg, 521 U.S. 702 (1997). The Court should decline to dictate a federal constitutional right to same sex marriage and should leave this determination to the states. The reasoning in Schuette v. BAMN makes this result more hopeful.

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