Trditional Marriage News

Date:
Tuesday, May 5, 2015

By JOHN STONESTREET| LIVESITE| Mon May 4, 2015 - 11:40 am EST

 

May 4, 2015 (BreakPoint.org) -- This past Wednesday, the Supreme Court heard oral arguments in a group of cases that will decide whether same-sex marriage will become the law of the land.

 

Although a decision in what will probably be called Obergefell v. Hodges is not expected until June, it’s not too early to think about the question “what’s next?”

And the first and most important thing to keep in mind is that while the Court can redefine marriage for legal and constitutional purposes, it cannot redefine marriage itself. That’s far beyond its competence and its authority.

Marriage is an institution that predates both politics and even religion. When Jesus talked about marriage, he pointed us back to the very beginning, to the proclamation that we find in Genesis 2: “Therefore a man shall leave his father and mother and hold fast to his wife, and they shall become one flesh.”

Those twenty-two words sum up what Justice Kennedy was getting at when, in the oral arguments, he said that “I don’t even know how to count the decimals when we talk about millennia . . . This definition has been with us for millennia. And it’s very difficult for the court to say, ‘Oh, well, we know better.’”

 

Some think that this comment means the outcome isn’t the foregone conclusion that many on both sides have assumed. Perhaps. What is true is that, regardless of the outcome, our primary allegiance as Christians must be to the actual definition of marriage, not any legal innovations, just as our allegiance has been to the sanctity of human life for the forty-two years since Roe v. Wade. And it’s for the same reason: these things ultimately belong to God, and we are called to be witnesses to the truth—even if it costs us our job, our popularity, our business, or our tax-exemptions.

And our responsibility includes setting the historical and anthropological records straight. Some of the comments by the justices brought to mind the professor’s question in “The Lion, the Witch, and the Wardrobe”: “What do they teach them at these schools?”

For example, after asking whether it would be prudent to wait and see whether the legalization of same-sex marriage “is or is not harmful to marriage?” Justice Stephen Breyer dismissively replied, “You know . . . you could have answered that one the same way we talk about racial segregation.”

 

With all due respect to Justice Breyer, this silly analogy has gone on too long. First of all, marriage literally dates from time immemorial. But legally-mandated segregation, or “Jim Crow,” didn’t last a century, and it only lasted that long because the Supreme Court, in Plessy v. Ferguson, gave the noxious idea of “separate-but-equal” its imprimatur. While marriage is the most ancient and venerable institution known to man, segregation was a modern idea born of modern ideas about race.

Similarly, while heterosexual marriage is a universal norm, Jim Crow and Apartheid were local aberrations. Comparing the two isn’t apples and oranges, it’s apples and bricks.

The same can be said of Justice Ginsburg’s citing a case in which a Louisiana court gave the husband “sole control of marital property.” According to Ginsburg, this proves that we’ve “changed our idea about marriage.”

 

Well, no, it doesn’t. There is a huge difference between changing our ideas about the legal status of husbands and wives within a marriage and saying that either husbands or wives are unnecessary to have a marriage.

Regardless of what happens in June, we need to be prepared to respond to these kinds of arguments now. If not to change other’s minds, then at least to be clear in our own.

In the meantime, we pray and we bear witness to the truth. And for believers, that’s always something we can do.

 

Date:
Monday, May 4, 2015
April 28, 2015|4:41 pm| The Christian Post|
 

U.S. Supreme Court Justice Anthony Kennedy, considered by experts to be a "swing vote" in the gay marriage case that's expected to split the justices in a five to four decision, made statements both for and against same-sex marriage during Tuesday's oral arguments.

"The word that keeps coming back to me is 'millennia,'" Kennedy told Mary Bonauto, a lawyer for the same-sex couples challenging state laws that prohibit same-sex marriages. "This definition has been with us for millennia. It's very difficult for the court to say, 'Oh well, we know better.'"

 

Later in the day, however, Kennedy said that same-sex couples were seeking the same "dignity" and "ennoblement" as heterosexual couples.

Kennedy, along with Chief Justice John Roberts, asked tough questions to plaintiffs and the defense during the two and a half hour arguments in Obergefell v. Hodges.

At one point, Roberts told a lawyer for the same-sex couples, "you're not seeking to join the institution — you're seeking to change what the institution is. The fundamental core of the institution is the opposite sex relationship and you want to introduce into it a same-sex relationship."

 

Lawyers argued before the justices whether the U.S. Constitution requires states to permit same-sex couples to marry. The nine-member court agreed to hear arguments for and against same-sex marriage based on four cases from the U.S. Court of Appeals for the Sixth Circut as part of the legal ruling process, which include:Obergefell v. Hodges (Ohio), Tanco v. Haslam (Tennessee), DeBoer v. Snyder (Michigan), and Bourke v. Beshear (Kentucky).

Donald Verrilli, a lawyer for the Obama administration, argued that "gay and lesbian people are equal, they deserve the equal protection of the laws, and they deserve it now," while urging the court not to wait on the ruling, which could come as early as June.

A lone Christian protester dramatically interrupted oral arguments during the first 90 minutes, shouting that "homosexuality is an abomination."

 

"'The Bible teaches that if you support gay marriage you will burn in hell for eternity,' he screamed, prompting Justice Antonin Scalia to joke that the interruption was 'rather refreshing,'" according to USA Today.

The protester was subsequently removed from the court room and handcuffed by police.

There are 12 states that still ban same-sex marriage, including Georgia, Ohio, Louisiana and Texas.

Date:
Friday, May 1, 2015

Ryan T. Anderson @RyanT_Anderson / May 01, 2015/ The Daily Signal/ 

 

Forty-two years ago, in Roe v. Wade and Doe v. Bolton, the Supreme Court tried to settle the abortion debate by declaring the Constitution somehow creates a right to abortion in all fifty states.

There is nothing in the Constitution that requires abortion in all 50 states, and that’s why Roe is rightly viewed as an activist decision, as explained in this Heritage paper:

Judicial activism occurs when judges decline to apply the Constitution or laws according to their original public meaning or ignore binding precedent and instead decide cases based on personal preference.

Labeling as ‘activist‘ a decision that fails to meet this standard does not express policy disagreement with the outcome; it expresses disagreement with the judge’s conception of his or her role in our constitutional system.

 

The result of this judicial activism has been three distinct types of harm: on the substance, on the process and on the rights of conscience.

On substance, by preventing states from making common-sense compromise policy on abortion, untold numbers of babies and women have been harmed. Look no further than Kermit Gosnell’s house of horrors. Or consider the fact that the U.S. is one of only seven countries in the world—alongside North Korea and China—that allows elective, late-term abortions after 20 weeks.

On process, by removing the issue of abortion regulation from the democratic process, the Court has created a 40+ year culture war. No issue in American public life is more contentious than abortion politics every election cycle. The Court short-circuited constitutional self-government on this issue.

 

On the rights of conscience, by unilaterally creating a “right” to abortion, the Court created a situation where for the past 40 years abortion funding has been a constant source of religious liberty concerns—most recently with the coercive Department of Health and Human Services mandate.

Why would the Court want to repeat these mistakes now on marriage?

After all, there simply is nothing in the Constitution that requires all 50 states to redefine marriage. Whatever people may think about marriage as a policy matter, everyone should be able to recognize the Constitution does not settle this question.

Unelected judges should not insert their own policy preferences about marriage and then say the Constitution requires them everywhere. Since nothing in the Constitution requires the redefinition of marriage, as explained in this Heritage legal memorandum, a Supreme Court ruling redefining marriage everywhere would simply be an act of judicial activism.

 

 

Perhaps the Court doesn’t want to repeat the mistakes of Roe v. Wade. Indeed, the justices on Tuesday gave voice to each and every one of these three potential harms that could occur due to judicially imposed redefinition of marriage.

On substance, judicially redefining marriage could cause harm to marriage itself—and thus to spouses and children.

No one knows with certainty how redefining marriage will harm the institution of marriage. The lawyer defending the state marriage laws certainly made good arguments that it’s reasonable to think it could cause harm.

So what’s the rush to have the Court strike down state laws that define marriage as a union of husband and wife? Why should, as Justice Stephen Breyer asked, “nine people outside the ballot box … require states that don’t want to do it to change … what marriage is?”

 

Breyer then asked, “Why cannot those states at least wait and see whether in fact doing so in the other states is or is not harmful to marriage?”

 

Wait and see. Justice Anthony Kennedy said the same thing:

Well, part of wait and see, I suppose, is to ascertain whether the social science, the new studies are accurate. But that it seems to me, then, that we should not consult at all the social science on this, because it’s too new. You think you say we don’t need to wait for changes.

Clearly, we do need to wait and see what the consequences of redefining marriage will be. And that’s why the Court shouldn’t attempt to settle this once and for all.

Judicial activism on the marriage issue could cause harm to the substance of marriage by not allowing citizens and their elected representatives the ability to arrive at the best public policy for everyone.

On process, judicially redefining marriage could cause harm to civil peace and self-government.

 

Chief Justice John Roberts noted that a court-imposed 50-state solution would not lead to civil peace, but to anger and resentment. If the Court redefined marriage, “there will be no more debate.” And this would cause problems: “closing of debate can close minds, and it will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”

Indeed, just as Roe v. Wade created a culture war on the abortion issue, an activist Court ruling redefining marriage everywhere could create a similar backlash.

On the rights of conscience, judicially redefining marriage could cause harm to religious liberty and the rights of conscience.

After all, the Obama administration’s Solicitor General himself, Donald Verrilli, admitted that religious schools that affirm marriage as the union of a man and a woman may lose their non-profit tax-exempt status if marriage is redefined, saying: “It’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is it is going to be an issue.”

 

But where marriage has been redefined democratically, religious liberty can best be protected. Justice Antonin Scalia explained that in the states “They are laws.” He continued:

They are not constitutional requirements. That was the whole point of my question. If you let the states do it, you can make an exception. … You can’t do that once it is a constitutional proscription.

Scalia repeated himself, almost verbatim, mere minutes later: “That’s my whole … point. If it’s a state law, you can make those exceptions. But if it’s a constitutional requirement, I don’t see how you can.”

And that’s why judicially redefining marriage could cause harm to religious liberty and the rights of conscience.

In sum, when you consider the harms that judicial activism caused on the abortion issue, and when you see the justices given voice to the potential harms of judicially imposed marriage redefinition, it seems a much better path forward to respect the constitutional authority of citizens and their elected representatives to make marriage policy in the states.

Date:
Thursday, April 30, 2015
April 29, 2015|4:48 pm| The Christian Post| 
 

WASHINGTON — The lead attorney representing the Obama administration admitted before the U.S. Supreme Court on Tuesday that if the court were to rule in favor of making same-sex marriage a constitutional right, it would create a religious liberty "issue" for faith-based schools and institutions, who could be at risk of losing their tax-exempt statuses.

As the Supreme Court listened to oral arguments regarding whether the 14th Amendment requires states to issue same-sex marriage licenses, U.S. Solicitor General Donald Verrilli tried to dodge a question from Chief Justice John Roberts, who asked him whether or not religious schools which have married housing would be required to provide housing to same-­sex married couples.

 

The solicitor general, which is the third highest ranking official in the Justice Department and is appointed to speak on behalf of the Obama administration in court cases, provided a winded answer to Roberts about how it is the states that are responsible for setting their civil laws.

Roberts continued prodding Verrilli by saying that even though states set their laws, the federal government has "enforcement power," which Verrilli admitted was true but reasoned that there is no federal law "now" that bans discrimination based on sexual orientation.

Justice Samuel Alito followed up and asked a pointed question regarding whether religious schools could have their tax-exempt status revoked for not providing same-sex couples with housing. Alito referenced the 1983 Bob Jones University Supreme Court case, which ruled that the Internal Revenue Service could revoke the school's tax-exempt status for refusing to accommodate interracial married couples with housing.

 

"So would the same apply to a university or a college if it opposed same­-sex marriage?" Alito asked.

It was clear that Verrilli did not want to answer that question but offered an offhand remark assuring that a ruling in favor of gay marriage would create some issues.

"You know, I don't think I can answer that question without knowing more specifics but it's certainly going to be an issue," Verrilli stated. "I ­­ I don't deny that. I don't deny that, Justice Alito. It is, it is going to be an issue."

Speaking at a Heritage Foundation panel on Wednesday, which discussed Tuesday's oral arguments, Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, explained that Verrilli's answer indicates that the Obama administration is looking to "preserve the ability to remove tax-exempt status from institutions, like religious universities."

 

"What this exchange shows is that the administration wants to leave the door wide open to do [removing tax-exempt statuses]," Severino told The Christian Post after the panel. "Not that they could really be bound, necessarily, by the statements here but the solicitor general does not want to, even in furtherance of winning this case, because him saying 'Don't worry, that won't happen,' that would actually help him in this case. Even though that would help his case, he said, 'I am not going to say that. We are not going to go there.'"

"Frankly his answer to Chief Justice Roberts a minute earlier more or less admitted that the federal government could say this case could force a religious college to open its married housing to a married same-sex couple if they were married under laws of the state," Severino added.

Severino also explained that such a ruling in favor of constitutional gay marriage would create a "head-on collision" with religious expression.

"That ought to give a lot of people cause to say that this is an absolute head-on collision potentially with religious liberty because the arguments that are being made on the other side are so extreme here," Severino stated.

 

Severino reasoned that if such a ruling could cause tax-exempt status issues for Christian universities and schools, it could also present religious freedom conflict for faith-based charities and other organizations also.

"There isn't any reason to say that it clearly wouldn't extend to charitable organizations, potentially even to removing tax-exempt status from a house of worship, which is a slightly different argument but I can see people trying to make that argument," Severino asserted. "Taking the tax-exempt status thing would be a gigantic step and a very serious blow to a lot of institutions, all sorts of charitable institutions that are run by religious organizations from Salvation Army on down."

"Just imagine if all of those groups were not tax-exempt anymore and what impact that would have on their ability to serve the poor the way they are attempting to do and live out their faith," she continued.

 

Severino expects that the potential for conflict with religious liberty will somehow weigh into the case's outcome even if the court decides to constitutionalize gay marriage.

"Those potential collisions were brought out and will affect the way the justices decide this case because I think that Justice [Anthony] Kennedy is not going to want to have that kind of collision with religious liberty, and any of the justices ought to be concerned with the potential of further limiting the religious liberty at this point," she said. "Perhaps, even if it doesn't mean that is going to affect the outcome entirely, it may affect the way that the opinion is written in a way to have less of a risk to steamroll religious freedom."

Date:
Thursday, April 30, 2015
April 29, 2015|4:48 pm| The Christian Post| 
 

WASHINGTON — The lead attorney representing the Obama administration admitted before the U.S. Supreme Court on Tuesday that if the court were to rule in favor of making same-sex marriage a constitutional right, it would create a religious liberty "issue" for faith-based schools and institutions, who could be at risk of losing their tax-exempt statuses.

As the Supreme Court listened to oral arguments regarding whether the 14th Amendment requires states to issue same-sex marriage licenses, U.S. Solicitor General Donald Verrilli tried to dodge a question from Chief Justice John Roberts, who asked him whether or not religious schools which have married housing would be required to provide housing to same-­sex married couples.

 

The solicitor general, which is the third highest ranking official in the Justice Department and is appointed to speak on behalf of the Obama administration in court cases, provided a winded answer to Roberts about how it is the states that are responsible for setting their civil laws.

Roberts continued prodding Verrilli by saying that even though states set their laws, the federal government has "enforcement power," which Verrilli admitted was true but reasoned that there is no federal law "now" that bans discrimination based on sexual orientation.

Justice Samuel Alito followed up and asked a pointed question regarding whether religious schools could have their tax-exempt status revoked for not providing same-sex couples with housing. Alito referenced the 1983 Bob Jones University Supreme Court case, which ruled that the Internal Revenue Service could revoke the school's tax-exempt status for refusing to accommodate interracial married couples with housing.

 

"So would the same apply to a university or a college if it opposed same­-sex marriage?" Alito asked.

It was clear that Verrilli did not want to answer that question but offered an offhand remark assuring that a ruling in favor of gay marriage would create some issues.

"You know, I don't think I can answer that question without knowing more specifics but it's certainly going to be an issue," Verrilli stated. "I ­­ I don't deny that. I don't deny that, Justice Alito. It is, it is going to be an issue."

Speaking at a Heritage Foundation panel on Wednesday, which discussed Tuesday's oral arguments, Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, explained that Verrilli's answer indicates that the Obama administration is looking to "preserve the ability to remove tax-exempt status from institutions, like religious universities."

 

"What this exchange shows is that the administration wants to leave the door wide open to do [removing tax-exempt statuses]," Severino told The Christian Post after the panel. "Not that they could really be bound, necessarily, by the statements here but the solicitor general does not want to, even in furtherance of winning this case, because him saying 'Don't worry, that won't happen,' that would actually help him in this case. Even though that would help his case, he said, 'I am not going to say that. We are not going to go there.'"

"Frankly his answer to Chief Justice Roberts a minute earlier more or less admitted that the federal government could say this case could force a religious college to open its married housing to a married same-sex couple if they were married under laws of the state," Severino added.

Severino also explained that such a ruling in favor of constitutional gay marriage would create a "head-on collision" with religious expression.

"That ought to give a lot of people cause to say that this is an absolute head-on collision potentially with religious liberty because the arguments that are being made on the other side are so extreme here," Severino stated.

 

Severino reasoned that if such a ruling could cause tax-exempt status issues for Christian universities and schools, it could also present religious freedom conflict for faith-based charities and other organizations also.

"There isn't any reason to say that it clearly wouldn't extend to charitable organizations, potentially even to removing tax-exempt status from a house of worship, which is a slightly different argument but I can see people trying to make that argument," Severino asserted. "Taking the tax-exempt status thing would be a gigantic step and a very serious blow to a lot of institutions, all sorts of charitable institutions that are run by religious organizations from Salvation Army on down."

"Just imagine if all of those groups were not tax-exempt anymore and what impact that would have on their ability to serve the poor the way they are attempting to do and live out their faith," she continued.

 

Severino expects that the potential for conflict with religious liberty will somehow weigh into the case's outcome even if the court decides to constitutionalize gay marriage.

"Those potential collisions were brought out and will affect the way the justices decide this case because I think that Justice [Anthony] Kennedy is not going to want to have that kind of collision with religious liberty, and any of the justices ought to be concerned with the potential of further limiting the religious liberty at this point," she said. "Perhaps, even if it doesn't mean that is going to affect the outcome entirely, it may affect the way that the opinion is written in a way to have less of a risk to steamroll religious freedom."

Date:
Wednesday, April 29, 2015

by JOEL GEHRKE April 28, 2015 2:07 PM| The National Review|

 

Religious institutions could be at risk of losing their tax-exempt status due to their beliefs about marriage if the Supreme Court holds that gay couples have a constitutional right to wed, President Obama’s attorney acknowledged to the Supreme Court today.

“It’s certainly going to be an issue,” Solicitor General Donald Verrilli replied when Justice Samuel Alito asked if schools that support the traditional definition of marriage

would have to be treated like schools that once opposed interracial marriage. “I don’t deny that.” Alito was continuing a line of questioning started by Chief Justice John Roberts.

“Would a religious school that has married housing be required to afford such housing to same­-sex couples?” Roberts had asked. Verrilli tried to defer to the states on that point,

but Roberts pressed him about the significance of the court’s ruling as it might pertain to federal law.

 “There is no federal law now generally banning discrimination based on sexual orientation, and that’s where those issues are going to have to be worked out,” he said.

 

Date:
Wednesday, April 29, 2015
April 28, 2015|6:03 pm| The Christian Post|

 

As the Supreme Court's oral arguments on whether states should be constitutionally obligated to issue same-sex marriage licenses adjourned Tuesday afternoon, Heritage Foundation's Ryan Anderson said in a news conference outside the building that the likely swing vote justice, Anthony Kennedy, was "not persuaded" by LGBT arguments.

As many are predicting the Supreme Court's decision in June to come down to a narrow 5-4 vote, Justice Kennedy has been pegged again as the justice who is likely to decide which way the court leans in making the tough decision on whether the 14th Amendment requires states to uphold same-sex marriages and validate same-sex marriage licenses given out by other states.

Kennedy pointed out in the hearing that "one of the problems" in this case is that the traditional man-woman definition of marriage has been the norm for "millennia," while the LGBT definition of marriage as being a union between two loving and consenting adults has only existed inside the United States for a decade, as Massachusetts legalized same-sex marriage in June 2004.

 

"One of the problems is when you think about these cases, you think about words or cases, and the word that keeps coming back to me in this case is millennia, plus time," Kennedy said. "But on a larger scale, ... it was about ­­about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years."

Kennedy further explained that it would be difficult for a bench of unelected judges to issue a national ruling on this highly-debated issue when there is only 10 years of same-sex marriage for the court to examine.

"And so there's time for the scholars and the commentators and ­ the bar and the public­­ to engage in it. But still, 10 years is­, I don't even know how to count the decimals when we talk about millennia," Kennedy added. "This definition has been with us for millennia. And it's very difficult for the court to say, 'oh well, we know better.'"

Speaking after the hearing, Heritage Foundation senior research fellow Ryan Anderson, who attended the arguments, asserted that Kennedy's concern about redefining a millenia of marriage was not eased by the subsequent response of pro-LGBT attorney Mary L. Bonauto, who stated that the issue of gay rights in America has been contested for over a century.

 

"Anthony Kennedy asked the next question and he says 'You want us to throw away a millenia of marriage as the union of a man and a woman based on 10 years of same-sex marriage,'" Anderson told the raucous crowd outside the court building. "Anthony Kennedy was not persuaded."

Cathy Ruse, who is a senior legal fellow at the Family Research Council and also observed the hearings, said that the lawyers on the LGBT side did not want to acknowledge the "history" of marriage argument.

"The fact that [Kennedy] is bringing up that distinction, shows that he is actually thinking of it in those terms, which the other side did not want to acknowledge that at all," Ruse told CP. "They didn't want to acknowledge the millennia and the importance of the history on the issue."

Although Kennedy was not sold that a "millennia" of traditional marriage can be redefined by the Supreme Court, that didn't stop him from asking difficult questions to attorney John Bursch, who argued in defense of the state of Michigan and other states with same-sex marriage bans.

 

Kennedy asked Bursch, who pushed the importance of the state holding a child-rearing view on marriage, why same-sex couples do not deserve the "same ennoblement" in their relationships.

Even though many social conservative attorneys and activists feel that Kennedy's "millennia" remark indicates that he may vote in favor of states' rights, Jordan Lorence, senior counsel with the Alliance Defending Freedom, told The Christian Post after the arguments that it was difficult to tell which side Kennedy is leaning.

"Those were good questions that [Kennedy] was asking but there were other times where [Bursch] was up and I thought [Kennedy] was asking things that would indicate that he might be leaning the other way," Lorence said. "I think it was very hard to read Justice Kennedy on this, except to say that I think he is giving serious consideration to the views on both points, which means it is probably going to be a five to four vote. For the other eight justices, where they came down was pretty clear for or against the state laws. We are just going to have to see."

Ruse additionally pointed to another Kennedy remark as an indication that he is "not comfortable" creating a new constitutional right.

 

"Justice Kennedy raised the issue of the [Washington vs.] Glucksberg case, which is the case in which the Supreme Court said no to the effort to make assisted suicide a constitutional right. Kennedy brought up Glucksberg. Kennedy voted no in Glucksberg. 'No, we are not going to create a new constitutional right,'" Ruse explains. "So, he brings up Glucksberg in this context. That is interesting. What he says when he does is 'What about our obligation to define a fundamental right in its narrowest terms,' and he mentions Glucksberg. That says to me that he is uncomfortable, potentially not comfortable creating a new constitutional right because we don't have it defined in its narrowest terms."

Jeff Mateer, general counsel at the Liberty Institute, told the crowd after the hearing that he foresees the court ruling in June to allow the state's to continue deciding their own marriage laws.

"It was encouraging and prayers have been answered and you should feel encouraged. ... I was especially encouraged that several of the justices recognized that religious liberty is a key value," Mateer said. "In the end, what I think we are going to see that the court is going to issue a decision that respects the right of the democratic process and will send this case back to the states where it belongs and that we respect religious liberty and we do have the freedom to believe, to speak and act upon our beliefs."

Date:
Tuesday, April 28, 2015
April 27, 2015|1:47 pm| The Christian Post| 
 

The redefinition of marriage to include same-sex couples has mostly been a revolution by a few judges. Will five Supreme Court judges continue that trend and reject a deliberative democratic process to define marriage?

The U.S. Supreme Court will hear oral arguments Tuesday, April 28 on an appeal from the Sixth Circuit Court of Appeals regarding the constitutionality of four state-level gay marriage bans.

 

Since June 2013, the number of states that legally recognize same-sex marriage dramatically increased from nine and the District of Columbia to 37 states, with Alabama being the most recent addition.

Many have marveled at the rapid increase in states that now have legalized gay marriage and believe the highest court in the land will finish off the remaining 13 bans.

This sudden increase in legalized gay marriage, while perceived as a broad-based grassroots upsurge, is actually the product of a fairly small number of judges overruling the votes of millions.

Background

 

From 1998 to 2012, majorities in 30 states approved amendments to their constitutions defining marriage as being between only one man and one woman. In these referenda, an electorate comprised of a diverse array of races, genders, political parties, and demographics passed the amendments, at times overwhelmingly.

In response, lawsuits eventually were leveled against all of the state-level bans. By 2013, eight states and the District of Columbia legalized gay marriage. Of those nine, only three of them did so via judicial decision while the other six were via legislative action or a referendum. The first was Massachusetts, whose highest court ruled 4 to 3 in 2004 to strike down their state ban.

In 2013, the Supreme Court ruled 5 to 4 in Windsor v. United States that a crucial component of the Defense of Marriage Act was unconstitutional. In the same session, the highest court ruled 5 to 4 that a lower court ruling striking down California's constitutional ban was to be upheld.

From the Windsor decision until February, lower court judges across the country ruled several state level bans unconstitutional. Many of these decisions were upheld by appellate courts.

During this time period, several states that never voted on an amendment but enacted statutes against gay marriage also had their laws struck down. Among these were Indiana, New Jersey, New Mexico, Pennsylvania, West Virginia, and Wyoming.

Below are summaries by region of the 17 state-level amendments against gay marriage passed by voters that have been struck down by judicial fiat since June 2013. Estimates for number of votes were rounded down.

The Midwest

 

In 2006, Colorado voters passed Amendment 43 with 56 percent saying yes and 44 percent saying no. The total number of voters approving was approximately 768,000.

In July 2014 two district court judges ruled Amendment 43 unconstitutional. Last October when the Tenth Circuit Court of Appeals ruled Utah's and Oklahoma's bans unconstitutional, the precedent set by the decisions was applied to Colorado's appeal.

April 2005 saw Kansas approve the Kansas Marriage Amendment with 70 percent in support and 30 percent opposed. Approximately 417,000 voted yes. In November 2014, a district court judge ruled the amendment unconstitutional and granted a temporary stay that ended after the U.S. Supreme Court allowed for the stay to expire.

In 2004, Montana voters approved Initiative 96 with 67 percent voting yes and 33 percent voting no. Approximately 295,000 people voted in favor of the amendment. After the Ninth Circuit Court of Appeals upheld the striking down of bans in Idaho and Nevada in October 2014, a district court judge struck down Initiative 96 and placed no stay on the ruling.

Oklahoma voters approved Question 711 in 2004 with 76 percent voting yes and 24 percent voting no. The total number of yes ballots was approximately 1.075 million.

In 2004, 66 percent of Utah voters approved Amendment 3, with 34 percent voting no. The total number of ballots in favor of the amendment was approximately 593,000.

In October 2014, the Tenth Circuit Court of Appeals ruled the bans in Oklahoma and Utah unconstitutional, upholding two lower court decisions, one per state.

In 2006, Wisconsin voters passed Referendum 1, which garnered 59 percent of the ballots cast, totaling an estimated 1.26 million votes. In June 2014, a district court judge struck down Referendum 1 and the following September the Seventh Circuit Court of Appeals affirmed the ruling.

Last October, the U.S. Supreme Court declined to hear appeals for various state level bans, which maintained the striking down of bans in Colorado, Kansas, Oklahoma, Utah and Wisconsin.

The South

 

In June 2006, voters in Alabama passed Amendment 774 with 81 percent of the vote in favor. Support for the amendment totaled about 697,000. In January a district court judge ruled Amendment 774 unconstitutional, with both the Eleventh Circuit Court of Appeals and the U.S. Supreme Court declining to issue a stay pending appeal.

Florida voters passed Amendment 2 in 2008 with 62 percent of the vote. The number of ballots cast in support of the amendment was approximately 4.89 million. A couple of judges issued localized rulings regarding Amendment 2; one district court judge in August 2014 issued a statewide ruling declaring it unconstitutional. Regarding the statewide ruling, both the Eleventh Circuit and the U.S. Supreme Court denied requests to stay the decision pending appeal.

North Carolina voters passed Amendment 1 in May 2012 with 61.04 percent in support. The yes votes totaled about 1.317 million. Last October, a federal judge struck down Amendment 1, concluding that a Fourth Circuit Court of Appeals decision applied to North Carolina. Another judge in North Carolina issued a similar ruling that October regarding two lawsuits brought in that court.

South Carolina passed Amendment 1 in 2006, with 78 percent of voters saying yes to the ballot initiative. The total number of ballots cast in favor was approximately 818,000. In November 2014 a judge ruled Amendment 1 unconstitutional, granting a temporary stay that the U.S. Supreme Court declined to extend.

Virginia voters approved Question 1 in 2006 with 57 percent of voters in favor and 43 percent opposed. The total of yes votes was approximately 1.325 million. In February 2014, a judge ruled the marriage amendment unconstitutional and the ruling was upheld by the Fourth Circuit Court of Appeals. The Fourth Circuit's decision in the Virginia case in late July of 2014 was then applied also to North Carolina and South Carolina.That October, the U.S. Supreme Court declined to hear an appeal in the Virginia case, along with several other states across the nation.

The West

 

Alaska passed Measure 2 in 1998 with 68 percent of the vote in support. The total number of ballots cast in favor totaled to about 152,000. Around 16 years later, in October 2014, a federal judge concluded that a Ninth Circuit Court of Appeals ruling overturning bans in Nevada and Idaho applied to Alaska.

In 2008, 56 percent of Arizona voted in favor of Proposition 102, totaling to approximately 1.25 million yes votes. This was a turnaround from a similar ballot initiative that narrowly failed in 2006. Last October, a district court judge ruled Proposition 102 unconstitutional, with Arizona's attorney general declining to appeal the decision.

In 2008, California approved Proposition 8 with 52 percent voting yes and 48 percent voting no. The total number of yes votes was approximately 7 million. In 2013, on the same day that the Supreme Court struck down a key component of the Defense of Marriage Act, the highest court in the land ruled 5 to 4 to deny the appeal made. In the majority opinion, the Supreme Court reasoned that the plaintiffs bringing the appeal lacked standing and specifically avoided the question of constitutionality of state-level bans.

Idaho voters approved Amendment 2 in 2006 with 63 percent of ballots cast on the issue in favor. The total number was approximately 281,000.

2002 saw Nevada voters pass Question 2 with 67.2 percent in favor and 32.8 percent opposed. The total number of yes votes was approximately 337,000.

In October 2014, the Ninth Circuit struck down the bans in Idaho and Nevada, affirming a lower court decision in Idaho but reversing a lower court decision in Nevada.

In 2004, Oregon voters passed Measure 36 with 57 percent in favor and 43 percent opposed. The total number of yes votes was approximately 1.028 million. About 10 years later in May 2014 a federal judge struck down the amendment and granted no stay, immediately applying the ruling to the state.

The Few Over the Many

 

Since the Windsor decision, well over 23,496,000 votes in 17 states have been declared invalid by the actions of fewer than 30 lower court and appellate judges.

If the U.S. Supreme Court strikes down the remaining 13 state-level gay marriage bans, it will effectively strike down more than 17.1 million additional votes.

Many experts believe that the Supreme Court will declare all state level constitutional bans on gay marriage unconstitutional, likely via a 5 to 4 decision.

If this occurs, in one decision the court will have effectively overruled over 40.5 million votes from 30 ballot initiatives.

Date:
Monday, April 27, 2015
April 26, 2015|10:46 am| The Christian Post|
 

WASHINGTON — What may have been the most diverse gathering of activists ever in Washington, D.C., gathered Saturday to "March for Marriage."

While the rainbow is often used as a symbol of diversity for the Gay Rights Movement, an impressive array of racial and ethnic backgrounds were evident among those united to defend marriage.

 

Eric Teetsel, executive director of the Manhattan Declaration, one of the sponsors of the March for Marriage, told The Christian Post that the crowd seemed "much bigger and more engaged" than last year's March for Marriage. That may be because the event, now in its third year, is young and "slowly starting to build," and the Supreme Court will hear arguments in a gay marriage case on Tuesday.

Teetsel was particularly struck, though, by the racial and ethnic diversity at the event.

"The thing that impresses me about this event, this is easily the most diverse rally I've ever seen. Every race, color and cultural background are united together for marriage," he said.

 

Brian Brown, president of the National Organization for Marriage, which organized the event, told The Christian Post that he was "overwhelmed" by the turnout, which he estimated to be twice as large as last year's March for Marriage.

The Capitol police seemed overwhelmed as well. The police did not close off First Street, which runs between the Supreme Court and the Capitol. At first they told the marchers to get on the sidewalks so traffic could continue. The sidewalks on both sides of First Street filled up, however, as one could still see marchers turning the corner from Constitution Avenue to First with no end to the March in sight. The police eventually acknowledged defeat and closed First Street.

When asked about the diversity of the marchers, Brown said the leaders of those diverse groups have been working for years "in the trenches together" defending marriage and some "amazing friendships" have developed out of that.

 

"I don't know what the Supreme Court will do [on gay marriage]," Brown continued. "I do know that God has His own purposes. The reality is we're working together in ways that we've never worked together before, with people of different faiths, different backgrounds. If that's the only thing that comes out of this, that's a big thing."

A translator was used for all the speakers, in some cases translating English to Spanish, in other cases translating Spanish to English.

At least two of the speakers mentioned the religious freedom concerns that have come with redefining marriage to include same-sex couples.

The day before the event, Aaron and Melissa Klein, owners of a bakery in Oregon, learned they will be fined $135,000 for refusing to make a cake for a same-sex wedding.

 

Jennifer Marshall, vice president for the Institute for Family, Community, and Opportunity, mentioned the Kleins in her remarks, along with Barronelle Stutzman, a florist who was fined for refusing a same-sex wedding, and Atlanta Fire Chief Kelvin Cochran, who was fired for his views about marriage.

"Standing for marriage comes with a cost," she said.

Cathy Ruse, a senior fellow at the Family Research Council, added: "Obama says nobody should lose their jobs because of who they love. What if who they love is Jesus?"

Date:
Friday, April 24, 2015

Glenn Foden / The Daily Signal/ April 23, 2015

 

 

Ryan T. Anderson, the William E. Simon senior research fellow in American Principles and Public Policy at The Heritage Foundation, wrote about the same-sex marriage case earlier this week:

On Tuesday, the Supreme Court will hear oral arguments about gay marriage. Here’s what you need to know.

 

1. There simply is nothing in the U.S. Constitution that requires all 50 states to redefine marriage. Whatever people may think about marriage as a policy matter, everyone should be able to recognize the Constitution does not settle this question.

Unelected judges should not insert their own policy preferences about marriage and then say the Constitution requires them everywhere.

 

2. The overarching question before the Supreme Court is not whether a male–female marriage policy is the best, but only whether it is allowed by the Constitution. The question is not whether government-recognized same-sex marriage is good or bad policy, but only whether it is required by the Constitution.

Those suing to overturn male-female marriage laws thus have to prove that the man–woman marriage policy that has existed in the United States throughout our entire history is prohibited by the Constitution. They cannot successfully so argue.

 

3. As Supreme Court Justice Samuel Alito pointed out two years ago, there are two different visions of what marriage is on offer. One view of marriage sees it as primarily about consenting adult romance and care-giving. Another view of marriage sees it as a union of man and woman—husband and wife—so that children would have moms and dads.

Our Constitution is silent on which of these visions is correct, so We the People have constitutional authority to make marriage policy.

The debate over whether to redefine marriage to include same-sex relationships is unlike the debate over interracial marriage. Race has absolutely nothing to do with marriage, and there were no reasonable arguments ever suggesting it did.

Laws that banned interracial marriage were unconstitutional and the Court was right to strike them down. But laws that define marriage as the union of a man and woman are constitutional, and the Court shouldn’t strike them down.

 

4. The only way the Court could strike down state laws that define marriage as the union of husband and wife is to adopt a view of marriage that sees it as an essentially genderless institution based primarily on the emotional needs of adults and then declare that the Constitution requires that the states (re)define marriage in such a way.

Equal protection alone is not enough. To strike down marriage laws, the Court would need to say that the vision of marriage that our law has long applied equally is just wrong: that the Constitution requires a different vision entirely.

But the Constitution does not require a new vision of marriage.

Advocates for the judicial redefinition of marriage cannot reasonably appeal to the authority of Windsor, to the text or original meaning of the Fourteenth Amendment, to the fundamental rights protected by the Due Process Clause, or to Loving v. Virginia. So, too, one cannot properly appeal to the Equal Protection Clause or to animus or Lawrence v. Texas.

Nor can one say that gays and lesbians are politically powerless, so one cannot claim they are a suspect class. Nor can one say that male–female marriage laws lack a rational basis or that they do not serve a compelling state interest in a narrowly tailored way, as explained in Heritage Foundation legal memorandum “Memo to Supreme Court: State Marriage Laws Are Constitutional.”

 

5. Everyone in this debate is in favor of marriage equality. Everyone wants the law to treat all marriages in the same ways.

The only disagreement our nation faces is over what sort of consenting adult relationship is a marriage. Since the U.S. Constitution doesn’t answer that question, the people and their elected representative should.

And they should democratically enact laws that define marriage as the union of man and woman, husband and wife, mother and father.

 

6. Marriage exists to bring a man and a woman together as husband and wife, to be father and mother to any children their union produces. Marriage is based on the anthropological truth that men and woman are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father.

Marriage is society’s best way to ensure the well-being of children. State recognition of marriage protects children by encouraging men and women to commit to each other—and to take responsibility for their children.

 

7. Redefining marriage to make it a genderless institution fundamentally changes marriage: It makes the relationship more about the desires of adults than the needs—or rights—of children. It teaches that mothers and fathers are interchangeable.

 

8. Rather than rush to a 50-state “solution” on marriage policy for the entire country, the Supreme Court should allow the laboratories of democracy the time and space to see how redefining marriage will impact society as a whole.

There is no need for the Court to “settle” the marriage issue like it tried to settle the abortion issue. Allowing marriage policy to be worked out democratically will give citizens and their elected representatives the freedom to arrive at the best public policy for everyone.

 

As the 6th Circuit noted when it upheld several states’ marriage laws, “federalism…permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time.” Judges should not cut this process short.

At the end of the day, this is a debate about whether citizens or judges will decide an important and sensitive policy issue—in this case, the very nature of civil marriage. Read more about it in our legal memo.

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