SCOTUS Got It Wrong:
The Defense of Marriage
Continues
Yesterday, the Supreme Court of the United States (SCOTUS) failed
to recognize that the people of the United States, through their elected
legislators and popular referenda, have lawmaking authority under our
Constitution. As demonstrated in 38 states, the people of the United States
understand, as the courts apparently do not, that it is impossible to redefine
marriage. From time immemorial, the unique and life-giving relationship of a
man and a woman in marriage has been protected by society because of the unique
contribution that marriage makes to the common good, and especially to the good
of children. Children are the fruit of
marriage, who need protection and nurturing for the benefit of current and
future society. Claims of “equal protection” have nothing to do with this
issue, as there is nothing equal to the marriage between a man and a woman.
Despite these facts, SCOTUS, in its United States v. Windsor ruling,[1]
held that the federal Defense of Marriage
Act (DOMA)[2]
violates the Equal Protection component of the Due Process Clause of the 5th
Amendment of the United States Constitution. The ruling, while correctly speaking to the
procedural right of states to establish their own laws, erroneously finds that DOMA impinges on states’ rights to
define marriage. The ruling therefore wrongly forbids the Congress from defining
marriage at the federal level. This not
only represents a contradiction in law, but a misunderstanding of the concept
of federalism. If federal policies should not automatically
become state policies, neither should state policies automatically
become federal policies.
All is not lost, as the SCOTUS ruling stopped short of mandating
the recognition of same-sex marriages across state lines: it left intact
Section 2 of DOMA allowing each state
to continue to recognize or not same-sex marriages contracted in other
states. Thus, the discussion and debates
will continue, not only at the state level, but also in the United States
Congress, which had promulgated DOMA. Yet
this is small consolation, given the tenor of the majority opinion, written by
Justice Anthony Kennedy. In his opinion, Kennedy held that the view of the millions
of his fellow citizens who favor traditional marriage is based on
discrimination which demeans and injures homosexuals. This is manifestly false
and misleading.
SCOTUS also issued a second ruling, Hollingsworth v. Perry.[3] This addressed California’s Proposition 8, the second of two ballot
initiatives[4] in
which the people of that state defined marriage as between one man and one woman. Proposition 8, was upheld by the
California Supreme Court.[5] However, it was ruled unconstitutional under
the Due Process and Equal Protection Clauses of the 14th Amendment
of the United States Constitution by both the United
States District Court for the Northern District of California (a single judge)
and the Federal Ninth Circuit Court of Appeals. Thus, both courts refused to
uphold the will of the people concerning a legally adopted constitutional
amendment within the State of California. Since California state officials
refused to defend their own state Constitution, the proponents of Proposition 8 sought and were granted
standing as petitioners in both the District Court and the Ninth Circuit Court
of Appeals. These same petitioners appealed the ruling of the Ninth Circuit
Court of Appeals to SCOTUS.
While not ruling on the merits of the case, SCOTUS refused to
recognize the standing of the petitioners, referring the case back to the Ninth
Circuit Court of Appeals. SCOTUS also vacated
the ruling of the Ninth Circuit Court of Appeals, but not the District Court ruling
which applied only to the Northern District of California, thus leaving the
rest of the state's law intact. California’s
Constitution states that all laws that have not been overturned by a federal
court of appeal must be enforced. Thus, since
SCOTUS vacated the ruling of the Ninth Circuit Court of Appeals, same-sex
marriage remains illegal in most of California. Despite this legal fact, the
Governor of California has directed that
all counties in the state of California issue marriage licenses to same-sex couples.
Debate will continue at the state level. The citizens of California, and not
the courts (and more egregiously not a single trial judge), have the right to
decide what they legally will recognize as marriage in their own state.
When the “Equal Protection” clauses are selectively applied by
judges no one is protected. One need
only review the ever-growing case law and government policies against those who are
attempting to stand up for traditional marriage: Catholic adoption agencies,
faith-based marriage pavilions, and private wedding vendors all are facing
discrimination under the heading of “equal protection.” The rights of conscience and of religious freedom
are at the very core of our nation’s history and the tradition of
self-government. We must continue to
bring these principles forward as we work to advance the truth concerning
marriage and its importance to a well-ordered society.
This is just another example of why it is so important to
participate in the U.S. Bishops’ Fortnight
for Freedom[6] to defend marriage, freedom and the
rule of law.
[4]
The wording of Proposition 8 was precisely the same as that which had passed in
Proposition 22 in 2000, as an
ordinary statute and not a state constitutional amendment as in Proposition
8. Proposition 22 had been invalidated
by the State Supreme Court in 2008. See:
In re Marriage Cases (2008) 43 Cal.4th
757 [76 Cal.Rptr.3d 683, 183 P.3d 384].
[5]
Strauss v. Horton 46
Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48.
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