Defending Marriage
In a little less than two weeks, on April 28, the Supreme Court will hear oral argument on the extraordinary notion that the Fourteenth Amendment to the United States Constitution requires a state to license or recognize a marriage between two people of the same sex. Your Judicial Watch is participating in this historic legal battle. The bold intervention of federal judges in remaking marriage is a challenge to self-government. That the U.S. Constitution would suddenly require states to change their marriage laws to keep up with the changing tastes of liberal elites is the antithesis of federalism and undermines the rule of law. (You can track the legal arguments and numerous briefs filed here.)
Earlier this month, we filed an amicus curiae brief in the U.S. Supreme Court supporting the rights of the states of Ohio, Kentucky, Tennessee and Michigan (James Obergefell, et al. v. Richard Hodges, et al.(No. 14-556, -562, -571, -574)). Our brief makes the case for judicial restraint with respect to marriage. In a 2-1 ruling, the U.S. Court of Appeals for the 6th Circuit reversed district court rulings that would have imposed same-sex marriage on those four states. This ruling, which is quite sensible, is at odds with judicial activist rulings from other circuit courts that redefined marriage in Virginia, Indiana, Wisconsin, Oklahoma, Utah, Idaho and Nevada. So now the Supreme Court may resolve the conflicts and rule, astonishingly, whether the American people can maintain the definition of marriage that goes back thousands of years.
In our brief, our legal team argues "the role of defining marriage and implementing laws in regard to it has always been primarily the province of the States," and that the courts have continually reaffirmed that tradition. Reversing that trend would only create legal and political confusion:
Interference with the States' sovereign sphere and ultimately, with the right of their citizens to engage in the democratic process, is contrary to our system of government and will result in dangerous constitutional conflicts.
JW also argues that denying recognition of out-of state marriages that conflict with state law is not a constitutional violation. Specifically, the courts have traditionally recognized marriage as an issue residing within the states' sovereign sphere of authority:
While it is in within the federal government's power to intervene in the sphere of marital relations, this Court has made it very clear that those interventions are to be infrequent, deferential to State authority, and always with the balance of federalism in mind.
We also remind the Supreme Court that history matters, and that a practice going back to the beginnings of our nation deserves respect under the First Amendment:
Marriage has, by definition, been the province of the States and has been traditionally defined as one man and one woman. This has been the case since the nation's founding. There is no evidence that defining marriage in that way was viewed as discriminatory or in violation of any constitutional rights or principles. Segments of society have begun to take a different perspective but this is hardly a sufficient reason to cast aside this "unique history" consistent with "centuries of national practice." 463 U.S. at 790. "[I]t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change." Town of Greece at 1819. "From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning the Fourteenth Amendment permits, though it does not require, States to define in that way." DeBoer, 772 F.3d 388, 404; see also Town of Greece, 134 S. Ct. at 1818-1820.
Finally, we warn that requiring the recognition of out-of-state marriages conflicting with state law will inevitably lead to constitutional conflicts and lead to harmful consequences:
[F]orcing States to recognize out-of-state same sex marriages that conflict with state law would ostensibly open the door to forcing States to recognize all out-of-state marriages that conflict with state law regardless of the conflict. This would completely remove the States from the marital relations sphere or at the very least, make state laws worthless.
The bottom line is we need to get away from results-oriented jurisprudence that substitutes judicial activism and a political agenda for constitutional safeguards and responsible adjudication.
The Supreme Court should resist the temptation to impose its moral values on marriage through raw judicial power, as it did with abortion through Roe v. Wade.
The judicial branch is being asked to undertake a power grab unmoored from the Constitution, history, self-government, and judicial restraint.
Simply put, under our republican form of government, the Supreme Court has no power to invalidate laws protecting traditional marriage under the United States Constitution.