Will Marriage Survive the Supreme Court?
From the Desk of Tom Fitton at Judicial Watch
Two high profile marriage cases were front and center in the Supreme Court this week that could have a significant impact on the bedrock institution of marriage. First, the High Court heard oral arguments in a case involving California Proposition 8, through which California voters amended the state Constitution to reaffirm the traditional definition of marriage as being between one man and one woman. The Ninth Circuit Court of Appeals then struck down Prop 8, and the issue is now before the High Court.
The general consensus with respect to the Proposition 8 case (insert “reading tea leaves” disclaimer here) seemed to be against the notion of the Court issuing a broad sweeping ruling either upholding or striking down gay marriage. Court observers seem to be prepared for a more nuanced ruling limited to the extent possible to the state of California and this particular lawsuit.
Judicial Watch, for its part, is hoping for a direct Supreme Court ruling in favor of Prop 8 as we argued in our amicus brief filed jointly in January with the Allied Educational Foundation:
Of course, the “standing” issue would not be on anyone’s radar if corrupt politicians (we’re looking at you former Governor Schwarzenegger and Governor Jerry Brown) had done the proper thing and defended the people’s right to decide this issue for themselves. Instead they betrayed their duty to defend the law, leaving it to the citizens of California to protect the law.
The second gay marriage case involved a challenge to the Defense of Marriage Act (DOMA), the federal law that defines marriage as it has been defined since the dawn of civilization. The challenge to DOMA comes courtesy of a plaintiff who is seeking a $300k plus estate tax refund because she thinks her same sex “marriage” in Canada should have been recognized by the federal government. I thought same sex marriage was about love!
As with Prop 8, the chief executive (President Obama) and the chief law enforcement officer (Attorney General Eric Holder) have betrayed their oaths of office and have refused to defend DOMA — the law of the land — in court.
JW has been highly critical of the Obama Justice Department’s refusal to defend DOMA, which has been the law of the land since 1996. In fact, we launched an investigation to get hold of documents that would almost certainly shed light on the administration’s internal deliberations on the issue. (We filed a similar lawsuit on behalf of the Family Research Council.)
It was good to see this week that some of the Supreme Court was critical of this lawlessness as well. Justice Kennedy called the situation “troubling” and Justice Scalia said, noting that Obama and Holder won’t defend the law but are supposedly enforcing it:
You can see how this thing is a mess. Beyond the absurdity and hubris of lawyers and judges wondering if they can redefine marriage – despite the will of the people – we have a situation where those officials who took a solemn oath to defend and enforce the law simply refuse to do so. I can’t even hazard a guess on how these cases will turn out. I fear, especially after last year’s ludicrous and political Supreme Court opinion upholding Obamacare, that the upcoming marriage decisions will undermine the rule of law and further degrade the Supreme Court in the eyes of the public.
You can listen or read the oral arguments to get a full appreciation on the controversy this week. To access the transcript and audio on the Prop 8 arguments, click here. To access the transcript and audio on the DOMA arguments, click here.