Marriage and the Constitution

Marriage and the Constitution
Ken Blackwell
Editors' Note: this piece was co-authored by Ken Klukowski
8-5-10

The federal same-sex marriage decision out of California sets into motion a sequence of events that will result in a Supreme Court earthquake two years from now. The Supreme Court can either vindicate traditional marriage, or forever redefine the most basic unit of human civilization.

Sounds melodramatic, but unfortunately—it’s true.

On August 4, the U.S. District Court for the Northern District of California decided Perry v. Schwarzenegger. The voters of California amended the California Constitution to say marriage in California is between a man and a woman. In Perry, the issue was whether there is a federal constitutional right to same-sex marriage, such that any state law, federal law, or state constitution to the contrary is unconstitutional.

The U.S. Supreme Court has held that marriage is a fundamental right in the U.S. Constitution. In this ruling, Chief Judge Vaughn Walker held that the California Constitution violates that federal right by not allowing gays to marry each other.

Although not explicitly mentioned in the Constitution, marriage is an implied fundamental right. The test for whether a right is a fundamental right is whether it is rooted in the history and tradition of the American people, and essential to an Anglo-American scheme of ordered liberty.

No one in this lawsuit disputes that the right to marry fits those two criteria of being rooted in our history and essential to an American concept of ordered liberty. So the question is whether same-sex marriage also meets that test.

The judge’s mistake ultimately comes from a false choice he sets up as the legal issue. He writes, “The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.”

That’s not the issue. The issue is whether a person has the right to redefine marriage. The district court tried to deal with that issue by declaring its own definition of marriage: “Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household.”

One of the problems with that definition is the word “two.” Why only two? Dozens of countries across the world practice polygamy, where a man can have more than one wife. Islam, for example, permits a man to have four wives, and that’s the law in Muslim nations. Why does the court insist on two?

There are other problems as well. In many countries, a person can be married at an age that is considered too young in America to give consent. In others, consent is not required regardless of age; many women are forced to marry against their wishes. In some cultures, people can marry close relatives, and in a few over time, even brothers and sisters.

None of that is protected by our Constitution. American laws against polygamy, child-marriage and incest do not run afoul of the Constitution.

But the federal judge in this case chose to define marriage in such a way that it would give a green light to same-sex marriage, while not casting into doubt all of these other laws that ban all of these other types of marriage.

The problem for the district court is that same-sex marriage shares the same problem as all those others when it comes to the constitutional test: None of them are found in the history and tradition of the American people. And none of those types of marriage have been found essential to an American concept of liberty. Therefore none of them are part of the fundamental right of marriage.

In the end, the Constitution protects the fundamental right for one man and one woman to get married, so long as they are not close relatives. That’s why laws that don’t allow interracial marriage are unconstitutional, but a law saying that a man cannot marry another man is not unconstitutional.

This case showcases some of the best legal talent in America. Supporters of same-sex marriage are represented by liberal legal legend David Bioes and libertarian/conservative Ted Olson, who is probably the most successful Supreme Court lawyer alive today. In a gross dereliction of duty and betrayal of their oaths of office, California state officials are not defending California’s state constitution in this challenge. So supporters of traditional marriage are being represented by conservative legal icon Charles Cooper—who was Ronald Reagan’s top legal advisor under Attorney General Ed Meese, and a former law clerk to late Chief Justice William Rehnquist.

These legal heavyweights will continue to fight this out. The Perry case goes now to the U.S. Court of Appeals for the Ninth Circuit, where the odds are good that the appellate court will affirm the trial court. (Most of the judges on the Ninth Circuit—which is the most liberal federal appeals court in the country—are either liberal or libertarian.) From there, it will go on to the U.S. Supreme Court.

This case parallels another case out of Massachusetts, where a few weeks ago a federal judge held the federal Defense of Marriage Act unconstitutional. That case is now on appeal to the U.S. Court of Appeals for the First Circuit.

So the issue of same-sex marriage is moving up the federal court system on two tracks. The odds are good that they will end up before the Supreme Court at the same time, and the odds are very good that one—or both—will be decided in the first half of 2012.

What position will the Obama Justice Department take as these cases go to the High Court? Will President Obama hold to his official statement that he believes in traditional marriage? Who is he going to alienate right at the end of his reelection campaign, his base, or swing voters?

This case presents one of the most important social issues in America’s history. As a society, we all have a vital stake in the outcome.

Ken Klukowski is special counsel with the Family Research Council and senior legal analyst with the American Civil Rights Union, and coauthor of The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency.
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Judge Walker's Clinic in the Power of Words To Deceive
David Limbaugh
8-6-10

Judge Vaughn R. Walker's opinion purporting to strike down California's Proposition 8 ballot initiative banning gay marriage is a screaming advertisement against the appointment and confirmation of renegade judicial activists like Elena Kagan.

The labyrinth of twisted reasoning Walker constructs in his opinion is a testament to the depth of deceit that inhabits the modern left's thought processes. The thinking is so bizarre I can only conclude it is the outworking of the spiritual warfare that hotly rages beneath our sensory perception. It is sheer madness!

Just read the sections of the judge's conclusions of law, "The Right To Marry Protects an Individual's Choice of Marital Partner Regardless of Gender," as an illustration of the power of words to deceive.

Walker first cites a line of cases affirming the principle that the freedom to marry is recognized as a fundamental right protected by the due process clause. He next asks whether the homosexual plaintiffs seeking to marry are asserting a new right or the same right as heterosexual couples. So far so good. But then he gives us a clinic in how a clever sophist can use words to minutely describe trees in a way that renders the forest they constitute completely unrecognizable.

He seeks to deconstruct (and then reconstruct) the definition of traditional marriage by describing its constituent elements and showing how those elements can be applied equally to heterosexual marriage and same-sex marriage, thus concluding there is no difference between the concepts. It's as if he compared my DNA with any of yours and concluded that because 99.9 percent of human DNA is the same in everyone, you and I are the same person.

Walker takes the various principles the courts have enunciated through the years concerning marriage and the right to marry, labors to show there's no logical reason to differentiate in the application of these principles between heterosexual marriage and same-sex marriage and, presto chango, concludes that these legal precedents demand that the definition be changed to conform to his worldview. All the while, he denies he's changing anything.

He states, for example, that "marriage has retained certain characteristics throughout the history of the United States." It requires that two parties "give their free consent to form a relationship, which then forms the foundation of a household," and that "the spouses must consent to support each other and any dependents." He cites case law affirming that "the state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace," and that "the state respects an individual's choice to build a family with another and protects the relationship because it is so central a part of an individual's life."

Because he believes these statements can be applied equally to homosexual unions, such unions, in his opinion, also fit our concept of marriage. The problem with that is that he can't artificially extend to homosexual unions ideas that were, by their context, intended to apply only to heterosexual marriage. The fact that two types of unions contain certain similar attributes does not negate the fact that at their core, those unions are fundamentally different. For example, just because heterosexual unions also include the free consent of both parties doesn't mean the court can be read to have equated those unions to heterosexual marriage. Similarly, the courts' statements about respecting an individual's choice to build a family cannot be retrofitted to apply to a nontraditional family of the "Heather has two mommies" variety.

Though Walker concedes that marriage in the United States traditionally has not been open to same-sex couples, which he cleverly mis-describes as a "tradition of exclusion," he insists our society has evolved and with it so has our "understanding of gender." He says that because our understanding of gender has evolved, we do not fundamentally change the definition of marriage by including same-sex unions within its scope. "The exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed."

But in the United States, marriage has always been legally defined as between man and woman, and the reasons for that are so fundamental in our culture and legal tradition that they do not need to be broken down into constituent parts. A man and a woman are the constituent parts of a marriage and do not lend themselves to further dissection.

Of course same-sex marriage proponents are advocating a fundamentally new right, and to argue otherwise does not pass the laugh test. So no matter how elaborately Judge Walker spins his web of deceit -- probably self-deceit as much as deceit of others -- he cannot alter the definition of marriage to fit his personal biases. And it's scandalous that he has tried and, in the process, has thwarted the rule of law and the sovereignty of the people.