Will Marriage Survive the Supreme Court

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:

…should the Supreme Court fail to overturn the Ninth Circuit’s decision, the people of California would be deprived of “the right to decide for themselves the ways in which they want to restrict or liberalize their marriage laws – or not.”The Ninth Circuit’s sleight of hand decision … constitutes a dangerous erosion of the principle of rational basis review … Furthermore, the Ninth Circuit decision expands the reaches of the Equal Protection clause in such a way as to eclipse the people’s sovereignty to make laws for their own governance … Finally, this [Supreme] Court should find that petitioners have standing to bring this appeal, as a contrary ruling would undermine the people’s rights to initiative and referendum in twenty-six states.

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:

And I’m wondering if we’re living in this new world where the Attorney General can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it, if we’re in this new world, I — I don’t want these cases like this to come before this Court all the time.And I think they will come all the time if that’s — if that’s — if that’s the new regime in the Justice Department that we’re dealing with.

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.

14 responses to “Will Marriage Survive the Supreme Court

  1. I believe this proposition should pass. People have the right to pursuit of happiness. And these couples have the right to be happy and this a right they should have. If we do not let this pass, we are taking there right away. I am Christian and still believe they should have the equal opportunity for happiness.

  2. Samantha R. Cimilluca

    I think it is crazy how people make such a big deal out of things. If everyone would just mind there own business there would be way less problems in the world. People should be able to marry whoever they want to marry, it does not harm anyone.
    I wonder if the idea of eliminating marriage as a whole to stop the controversy would work or just make people more angry.

  3. i do not care how marriage is defined. I believe that love is love and people should be allowed to marry who they want. Everyone makes it a religious thing but i am christian and being gay is not a sin the act of having sex with someone of the same sex is. honestly people make any excuse to stop people from being different. No one would choose to go through life being homosexual. no one would want to be picked on until they cry or get hit or even be called disgusting. People really need to open up their eyes and realize it shouldn’t matter who wants to marry who as long as they are happy.

  4. I do not understand why its in the government hands to say who can and cannot get married. Yes, it is of God that only man and women can get married but this world is doing a lot more harm that is not of God’s word and letting same sex marriage take place is going to end the world. And plus we aren’t the ones that should be judging people.

    • I want to comment about the question you raise. As I have said in class, there is a simple resolution to this issue. The states can offer a legal document tht gives same sex partners and male/ female unifications that give the same tax and inheritance rules for all people and forget about the word “marriage.” Then, religious people do not need to argue with other citizens about rights. If you don’t have a “marriage license” and divorces would not be needed. If people were to separate, they would only need to make a new contract about their money and who gets the kids and who will support the kids. Religious people would not be offended and neither would same sex couples be offended. No one is forced by the government to conform to a law that limits their freedom of religion.

  5. I agree if there is a law that allows the state to treat a certain group of people differently then it is unconstitutional. People should be treated fairly. If people from the LGBT community want to miserable and married to someone then let them be! Why do straight people only get to miserable and married? (I’m joking about the miserable part! lol)

  6. “Last year’s ludicrous and political Supreme Court opinion upholding Obamacare” this tottal opinion piece. First Marriage and civil union are not the same. My parents have had a civil union for over 22 years, and now have been married since 2008. However they still have to file different taxes then married couples. They do not get the same health benefits as married couples. In some states they are not allowed to adopt. Marriage is not the same as a civil union. Some of the arguments are that marriage is for making a family. Well then ok any one past menopause should not be allowed to get married then, any one that has had a surgery to no longer have children should not be allowed to get married then. Any one physically unable to have children or does not want to have children shouldn’t be allowed to get married then.

  7. I am pretty sure that any law that bans a particular group of citizens from doing something that everyone else is free to do will be found unconstitutional. Civil rights movements happen when unjust laws become intolerable to the people at the recieving end of the injustice.

  8. As it is I think the government has too much to say about individuals and too much control on how we live our lives. When is enough going to be enough, religion and politics do not necessarily go hand in hand anyways, and that is everyones main argument is its against certain religious beliefs. There is nothing that the government can say about gay marriage that it would cause the nation to have a negative side effect. Like I said before the government needs reassess their role, and learn to step back. Equality is key, this is America

  9. I like the idea, Kollitz says in her class, because I’ve actually heard my mother make the same argument years ago “Why not make the civil union the important legal part, and have the marriage just on the side with a “for religious reasons” so it doesn’t create these unnecessary problems.

  10. Money$$$$ it’s always about money. Counselors, Lawyers, taxes. Very controversial argument. But I am sure money will have something to do with the decision.

  11. With divorce rates so high among heterosexuals, I dont see why gays would want to get married, but I believe we should all have equal rights. Gay marriages might actually last longer than hetero marriages since this is an issue that the gay community has had to fight for for so long. When we are forced to fight or work towards something, we tend to appreciate it more. I believe that if gays were granted equal rights to marry they would have more appreciation and respect for their marriage, their partner, and their relationship. Give gays their rights, for they are human too!!!

  12. This is extremely interesting! Is it true that marriage could be cancelled out over all? It’s insane to think of all the people who make such big deals about the rules and cause such havoc among society.

  13. Yesterday, March 28th, I watched Dr. Keith Adlow (staff Psychiatrist for FOX News) on the Greta Van Susteren’s TV news program. He had a strong opinion on what should happen on this issue, but probably not occur this time around. He said marriage licenses brought in money for the states and since there is so much division in society over this issue that the whole issue could be solved by eliminating marriages. If people want to get married and live by the beliefs of their religion, they could do just that. Of course there would be no expensive divorces and attorneys would not be making so much money and governments would be losing fees. This would lower costs for the poor. But, people would not be haggling over word definitions and everyone would be happy–no lawsuits violating anyone’s perceived civil rights or violation of the constitution.

    Not a bad idea Dr Adlow.

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