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Marriage and the Constitution
· Sunday, August 8, 2010
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.
(Editors' Note: this piece was co-authored by Ken Klukowski, who 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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Ruth Ann Wilson
"None of that is protected by our Constitution. American laws against polygamy, child-marriage and incest do not run afoul of the Constitution." Mr. Blackwell
The Constitution, Declaration of Independence, and The Ten Commandments of Almighty God are the Triune Pillars of this Republic. The basis of our "Christian Nation, Supreme Court Case, 1892" was the Bible. And that is what the enemies of America want removed from our Nation. It is the Bible and God they want US to exclude from this "Christian Nation."
It isn't in the "Enumerated powers" of the Constitution that the Federal level is to be "settling this issue". It is a State issue. All "Marriage issues" were settled at the State level and passed to the Local Level prior to all this "upheaval."
I think California under their 10th Amendment Rights settled the question on TWO referendums from the People of the State of California. It is the "radical judges" that are "out of jurisdiction" who make these "rulings" contrary to the Referendum of the People of the States.
I don't see in the "enumerated powers" any suggestion that the United States Constitution, Federal level, has any business "deciding this issue" The "jurisdiction" resides with the State.
The "jurisdictional question" is becoming very critical. By violating "jurisdiction" these "radical judges" are making rulings that they have no right to decide. The judges are "Out of bounds". If they can not clearly see that they have "NO JURISDICTION"(by a basic reading of the Constitutions to which they are under solemn oath to "uphold and defend") it is the power of the people and the legislature to IMPEACH.
I am only a commoner, but some things are obvious.
For God & Country
The American
Posted August 8, 2010 at 9:39:40 AM
Michael R Johnson
It is The Declaration of Independence, The Articles of Confederation, and The Ten Commandments that set presedance in America, The Constitution of September 17th 1787 was never properly adopted by a government and therefore becomes an Employment agreement with all representatives and officers of the United States, The property owned by or ceded to The United States of America, The Confederacy.
We will never get it untill we understand that fact.
Posted August 8, 2010 at 10:05:29 AM
Bob W
Let's remind all between now and November that Obamonomics, aka, Communist ideology, does not work in America.
1 Trillion Dollars of tax payer money socialized health care, bank and business takeovers, did nothing for unemployment, did nothing to stimulate jobs, and only resulted in business stagnation, fear and layoffs.
But a caveat to the above, that is, unless you were a union or federal government worker. That should tell the American people who is in office. He is not an extreme liberal, but a Communist in wanting.
Please remind everyone, liberals, independents, and conservatives that $1 Trillion Dollars of tax-payer money did nothing for American Capitalism.
Posted August 8, 2010 at 11:00:21 AM
terry goodwin
RUTH ANN is correct. This issue is to the states under the 9th and 10th amendments. As the ten commandments is to the individual, gay marriage is to the people. Same with the Mosque issue, it is a moral judgement made by the people, not the courts. A right is something that is written and given to everyone, but does not have to be provided, ie; health care, or Gov't bail out. These are the same people who defy the commen good yet use the exact same system to promote theirs. When the criminal has more rights than the one whom the crime was committed against is absurd.
Posted August 8, 2010 at 11:39:23 AM
Abu Nudnik
Gays CAN marry each other within the existing law. Though it sounds like a technicality to say gay men can marry gay women it does destroy the argument that they can't marry because they are gay. They cannot marry, in fact, due to gender choice, defined as opposite in marriage law.
A similar politicization occurred as soon as AIDS broke. A very successful lobby launched a preemptive strike against "imprisoning" "gays." Lies come in pairs so they can mate. Quarantine is not a prison though it is separation for the sake of the uninfected. And it's because they had AIDS, not because they were gay. Remember the soon to be unveiled "AIDS is not a gay disease?"
As a result of the greatest public health disaster in history caused by incompetence and political interference, 25 million people to date have died of AIDS.
Sorry Terry, you're wrong when you say "A right is something that is written and given to everyone..." If a right can be given it can be taken away. No. Rights are "unalienable... endowed by their Creator."
Posted August 8, 2010 at 2:52:46 PM
Perry
Marriage is about taking care of the children. The adults can take care of themselves. Any deviation into "morality" is a legal non-starter. While there are 10th Amendment issues, the fact is that the Federal Government regulates Social Security, inheritance, and other areas of law, and those laws include the word "marriage". That is the actual target.
The compelling government interest in regulating traditional marriage is to protect the children - i.e. future taxpayers. Adults are fully capable of taking care of themselves outside of marriage, especially if they do not have children to support.
Historically, widows without support were unable to care for their children. Orphans of the street tend to become criminals. They face a life of crushing poverty. That is the compelling government interest. For this reason, we (or our parents) agreed to pass Social Security during the Depression - it was to take care of the old, the widows, and the orphans.
Now come the gays and lesbians who, due to their urban lifestyle, tend to be more wealthy. They are well-organized. Their voice is out-sized compared to their actual numbers. They wish to claim the benefits granted to those who do the hard work of raising children, and elbow these weaker ones out of their way.
Meanwhile, who speaks for the old, the widowed, and the orphans? They are struggling just to make ends meet, and have no time or resources to organize politically, go to rallies, or even call their Congress. It's inherently unfair. They need a voice.
Posted August 8, 2010 at 10:12:40 PM
Twitchy
Ruth Ann, try reading Article 6 of the Constitution: "...no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
Posted August 9, 2010 at 5:21:45 AM
BRD
My understanding is that Vaughn is a homosexual. If so, there would be nothing magical about his ruling: it is a direct conflict of interest. And if so this is obviously a solid case of judicial perversion and, would once upon a time, have been a crime. But since the new world order coming out of Washington is to reward the law-breakers and punish the law-keepers, a distorted set of arguments complete the shame. As Hitler practiced, tell a big enough lie and everyone will believe it. The only labyrinth of twisted reasoning here is what goes on in the heads of the American public to continue swallowing this s---. But let's make sure we never let the actual facts get in the way of agendas.
Posted August 9, 2010 at 1:56:28 PM
JTG
The larger issue is that one gay judge overruled the will of the people. In a republic, this should not be allowed to happen. November's elections are much more than defeating the Obama agenda.
Posted August 9, 2010 at 3:28:50 PM
Roger
I think that Ruth Ann hits the issue squarely on the head with her comment. Most of our enemies, both external and internal, fundamentally recognize what many conservatives seem to have forgotten: that the basis of our Christian Nation is the Bible. And that is what our enemies want removed from our Nation. It is the Bible and the LORD of heaven and earth that they want us to exclude from our discussion. Any arguments we try to front that exclude this fundamental basis of our laws and our constitution are doomed to failure. We need Christian pastors to teach this to their congregations, and be willing to speak out publicly on this issue.
Posted August 9, 2010 at 4:34:06 PM
Leroy
One of the greatest blasphemies committed by the ancient Israelites was to ask that God put a king over them just like all the other nations. For all those anti-constitutionalists out there who have made government their god, this obamanation's for you. Since the elites like him know that you are NOT capable of governing yourselves, welcome to slavery anew. Only this time, there will be NO emancipation.
Posted August 9, 2010 at 7:43:34 PM
Bowen
Mr. Blackwell, does your litmus test make any sense?
The Founding Fathers did not set down a set of acceptable and unacceptable options. They set down a set of principles.
For example, the Founding Fathers likely didn't care about interracial marriage or black marriage; certainly, it was foreign to the set of ideas they brought to the table. In fact, such acts were either illegal or restricted for many years.
So, according to your test, do you have the right to marry? No. The Founding Fathers didn't explicitly set down that right so you do not have it.
Does that sound American to you?
Or does it sound better to let two consenting adults make a personal choice?
And to those claiming America is a Christian nation, which I do not protest, do non-Christians have the right to religion? If America is based on Christianity, aren't all other religions in conflict with this?
Or is America based on the Christian ideal of self-determination?
Can America be Christian while supporting other faiths? Clearly, the Founding Fathers thought so.
Posted February 14, 2011 at 12:24:03 AM