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Building the Resistance to Same-Sex Marriage (Part two of a series)

By William J. Olson and Herbert W. Titus

Within the month, the nation will receive the opinion of the U.S. Supreme Court as to whether the U.S. Constitution requires all of the states to jettison their domestic laws and sanction same-sex marriage.

Numerous federal judges have so ruled, and most states have simply yielded to those federal court decisions. In a few cases, beginning with Vermont and Massachusetts, state courts ruled for same sex marriage, and state officials have accepted passively those decisions as well.

Generally, courts have ruled for same-sex marriage using either the “due process clause” or the “equal protection clause” of the Fourteenth Amendment, or both. That raises a simple question: is it really possible that when the Fourteenth Amendment was ratified in 1868 the framers intended that it sanction same-sex marriage? Of course not.

The U.S. Constitution says nothing about same-sex marriage. Then, how could the Constitution be manipulated to support a decision in favor of same-sex marriage? Well it has not been easy. The Constitutional case for same-sex marriage is pathetically weak — unless you adopt the notion of an “evolving” Constitution — which is, of course, the polar opposite of the notion of our “written” Constitution.

There are actually four cases, all from the U.S. Court of Appeals for the Sixth Circuit, which have been consolidated for decision in the U.S. Supreme Court — Obergefell, DeBoer, Tanco, and Bourke.

If you would like to know more about how this case developed, a great deal of information, and links to all documents, is available on SCOTUSblog. The amicus curiae brief which we filed in the Sixth Circuit in support of traditional marriage is available, as is the amicus curiae brief which we filed in the U.S. Supreme Court.

The opinion by Judge Sutton of the U.S. Court of Appeals for the Sixth Circuit — upholding traditional marriage against five challenges in four states — begins with a remarkable observation that should have resolved the case in that once sentence, but did not. Judge Sutton points out that “[n]obody in this case … argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.” DeBoer v. Snyder, 772 F.3d 388, 403 (6th Cir. 2014) (emphasis added).

Laymen logically deduce that if the Fourteenth Amendment as written had nothing to do with same-sex marriage, that’s the end of the matter. After all, Justice Douglas succinctly described the Amendment in his autobiography: “The Fourteenth Amendment was passed to give blacks first-class citizenship.” William O. Douglas, The Court Years, p. 154 (Random House: 1980).

But for those lawyers who want unelected judges to set the public policy of our nation, it simply doesn’t matter what the Framers intended. And neither does it matter to many judges who are all too willing to give effect to their own political views. Discovering the “authorial intent” of the Framers is only a small part of their concern — a step they sometimes skip over entirely.

Recently, Justice Alito observed that “[s]ame-sex marriage presents a highly emotional … question … but not a difficult question of constitutional law.” United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675, 2714 (2013) (Alito, J., dissenting):

The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue. It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition. [Id. at 2714-15.]

Therefore, Justice Alito explained that challengers to traditional marriage:

seek … not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. [Id. at 2715.]

If we are now considering a new right, one could legitimately ask when and where did this new right come from. Indeed, during oral argument in the case of Hollingsworth v. Perry, Justice Scalia asked this very question to same-sex marriage champion lawyer Ted Olson:

Justice Scalia: “When did it become unconstitutional to prohibit gays from marrying?… Was it always unconstitutional?”

Ted Olson: “It was [un]constitutional when we — as a culture determined that sexual orientation is a characteristic of individuals that they cannot control…”

Justice Scalia: “I see. When did that happen?…”

Ted Olson: “There’s no specific date in time. This is an evolutionary cycle.”

Of course, a written constitution that is subject to evolutionary change is no longer a written constitution. A constitution that is always evolving provides no fixed guarantees for the rights of the people.



 

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