Disclosure: I am not a supporter of same-sex marriage. As a constitutional conservative and a traditionalist, I believe that the definition of marriage is that of a committed relationship between one man and one woman who are not directly related to each other by blood. This is the foundation of family stability (I haven’t helped in this since I did divorce my first wife; I’ve since remarried) which has been proven time and time again. I also recognize that there are same-sex couples who are in committed relationships and don’t believe the people or the government have the right, nor should they actively seek, to destroy the people in these relationships. It is dangerously unfortunate that the left does believe it has the right to actively seek to destroy those who don’t agree with them.
One of the mantras perpetually screeched by the left is that they want the government out of the bedroom. Considering how often leftists go to court over actions that take place in the bedroom (and other rooms, or whatever), it’s obvious this was nothing more than agitprop. The Perry decision by U.S. District Court Judge Vaughan Walker is sure to keep the government involved in bedroom activities for many more years to come.
I can see that what is referred to as marriage equality, recognizing that a committed relationship between two people of the same sex is part of the definition of marriage, is coming. As with so many political issues, this one is being resolved in a completely unconstitutional, and hypocritical, manner. Worse, the Perry ruling may literally threaten the viability of thousands of state laws along with the Defense of Marriage Act (DOMA) and the U.S. Constitution.
We in America, even those in government, are supposed to adhere to the rule of law. But with the Perry ruling, the rule of law was thrown out the window. Perhaps unwittingly, Mark Ambinder may have stumbled into the problems with all of this in a post titled “Prop 8 Overturned: The Facts, Not the Law, Matter”. He goes out to list a bunch of “facts” that Walker lists, although many of those “facts” are really quite dubious. But that isn’t really the issue. The law is what is supposed to matter. Allow me to explain.
The obvious problem with Perry is that it completely refutes the 10th Amendment, which says [emphasis mine]:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
That is pretty definitive. Less definitive, but quite applicable, has to do with what is said in the 9th Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
If you scour the Constitution, you will not find the word marriage anywhere. Nor will you find how marriage is defined. That was the point of the 9th Amendment; neither the Constitution nor the Bill of Rights were designed to detail every possible right, and any exceptions, that they were to guarantee. One of those rights is how people see marriage. Judge Walker does not see marriage that way. In fact, he goes out of his way to list out items in an attempt to disavow the 5000 years of history as it relates to marriage, which includes the last 2000 years of marriage as defined by Christianity. He refers to “evidence” provided by the plaintiffs to “prove” his point.
One of the arguments Judge Walker dismisses shows up on page 129 of his ruling (page 131 of the PDF):
Proponents next argue that Proposition 8 protects the First Amendment freedom of those who disagree with allowing marriage for couples of the same sex.
The relevant argument provided is that Proposition 8 allows for the guarantee of “the First Amendment rights of individuals and institutions that oppose same-sex marriage on religious or moral grounds.” Walker dismisses this argument because, according to him, no First Amendment rights are affected. He cites the California Supreme Court In re Marriage Cases decision which struck down Proposition 22, the statutory predecessor to Proposition 8 (Prop. 22 attempted to define marriage within California’s Code of Law instead of through the California Constitution). According to Walker (on page 89 of the ruling, page 91 of the PDF), no religious group was being forced to recognize same-sex marriages [emphasis mine]:
a. In re Marriage Cases, 189 P3d at 451-452 (“[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”)
That isn’t true at all. Not long after the In re Marriage Cases ruling came out, the LA City Attorney issued the following dictate:
The city attorney said Monday that county workers authorized to perform marriage ceremonies must be willing to conduct same-sex marriages under last week’s landmark court ruling, regardless of their personal views on homosexuality.
City Attorney Rocky Delgadillo said in similar letters to the Secretary of State and Los Angeles County Supervisors that any policy that would allow certain workers to conduct only marriages between a man and a woman would be inconsistent with Thursday’s state Supreme Court decision that legalized gay marriage in California.
“The court ruled that the state’s constitution guarantees the right to marry to all Californians,” Delgadillo wrote.
Let’s go over the first part of the First Amendment [emphasis mine]:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
The vast majority of Christian denominations, along with Judaism and Islam, teach that homosexuality is a sin, just as it teaches that men and women having sex outside of the institution of marriage is a sin. Considering that the 14th Amendment, which is used by Judge Walker in his ruling, incorporates the Bill of Rights into the laws of every state (or is supposed to), what Mr. Delgadillo was doing was a violation of an individual’s free exercise of their religious beliefs. In addition, the California Constitution prohibits the state from discriminating against anyone due to their religious beliefs, even those who would be working in offices that distribute marriage licenses. Plus, Article VI of the U.S. Constitution bars the use of a religious test in determining who can work for the federal, state, or local governments. It does not appear to me that the attorneys for the defense in Perry used this evidence to support their case. But considering that Judge Walker used the rational basis test for his ruling, it is likely that he would have ignored the significance of what Delgadillo did.
As a matter of law, another matter comes up. The definitive case in regards to same-sex marriage up to this point is Baker v. Nelson, a decision by the Minnesota Supreme Court that upheld a denial of a marriage license to two men who wanted to marry each other. In 1971, the Supreme Court summarily dismissed the final appeal. As mentioned in the link, the appeal came to the Court as part of the judicial system’s mandatory appellate review process, not through a specific petition to the Court (a writ of certiorari) asking for a review. As explained in Hicks v. Miranda, lower federal courts are required to follow precedent set in this manner, as if the Supreme Court did rule on the merits of a case, even if the Supreme Court hadn’t done so [emphasis from original; citations omitted]:
We agree with appellants that the District Court was in error in holding that it could disregard the decision in Miller II. That case was an appeal from a decision by a state court upholding a state statute against federal constitutional attack. A federal constitutional issue was properly presented, it was within our appellate jurisdiction under 28 U.S.C. § 1257(2), and we had no discretion to refuse adjudication of the case on its merits as would have been true had the case been brought here under our certiorari jurisdiction. We were not obligated to grant the case plenary consideration, and we did not; but we were required to deal with its merits…The three-judge court was not free to disregard this pronouncement [ed. note – the appeal was dismissed]…The District Court should have followed the Second Circuit’s advice, first, in Port Authority Bondholders Protective Committee v. Port of New York Authority, that, “unless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that, if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise;” and, later, in Doe v. Hodgson, that the lower courts are bound by summary decisions by this Court “until such time as the Court informs [them] that [they] are not.'”
This holds true whether a ruling is affirmed or dismissed. The Supreme Court can go ahead and overturn Baker if a flaw is determined, but a lower federal court isn’t given any latitude here. Nowhere in his ruling on Perry does Judge Walker reference Baker, despite its binding authority. Maybe it was an oversight on his part, or maybe Judge Walker deliberately ignored it. I can’t say. But it does have a bearing.
Per Walker’s ruling, he claims that both the Due Process Clause and Equal Protection Clause of the 14th Amendment were violated. But he doesn’t base this on the law, as I’ve explained. In the process, he rendered the 1st, 9th, and 10th Amendments irrelevant, not to mention the civil union law in California, and, if Walker’s ruling holds up in the Supreme Court, every state constitutional amendment and statute that would define marriage as that of one man and one woman, and the federal DOMA.
Another aspect to this ruling comes up, the “slippery slope”, where a judicial ruling on a matter leads to a plethora of other lawsuits that seek to illegally expand “rights” guaranteed by the Constitution. In his opinion in 2003’s Lawrence v. Texas, Justice Kennedy wrote:
[The present case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
In a sharp dissent, Justice Scalia knew better [emphasis mine]:
The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
And sure enough, it has been made so by Judge Walker, who used “rational-basis jurisprudence” to come to his decision. This has been the case since Roe v. Wade when that case was used to deny a husband any say in the decision by his wife to abort a child the two had conceived (Casey; the same Equal Protection Clause used by Judge Walker is missing here) and allowed, in Stenberg, the brutal practice of partial birth abortions (Stenberg was rendered moot by the Partial Birth Abortion Ban Act of 2003, which was upheld by Gonzales v. Carhart).
As with what Delgadillo did following the In re Marriage Cases, Massachusetts did something similar following the passage of a law barring discrimination based on sexual orientation and that state’s Supreme Court ruling ordering Massachusetts to recognize same-sex marriages. After finding out that priests in Catholic Charities were placing children in the homes of same-sex couples to be adopted by those couples, the Archdiocese said that they wouldn’t allow that anymore as it violates the teachings of the Church. The City of Boston came back and said Catholic Charities must continue to place children in same-sex households or they would run afoul of the orientation discrimination law. So the Archdiocese said, fine, Catholic Charities was out of the adoption business in Massachusetts. Again, the religious freedoms that are supposed to be part of the reasons for the existence of America were set aside.
I see two (additional) future problems with Walker’s ruling. One, lobbyists will attempt to claim that because the “civil rights” of homosexuals have been frequently violated for decades, homosexuals must be paid “reparations”. This is similar to what many in the race-baiting industry have been trying to accomplish.
Two, which is worse, the courts will be used to justify additional types of marriages, especially polygamy. There are already fringe groups of religious extremists, not attached to any mainstream religion, who engage in this sort of illegal practice now. Plus, there are those people who claim to be bisexual; by definition, they are attracted to both men and women, and seek sexual fulfillment with both. Donald Douglas points to a 2005 Weekly Standard piece by Stanley Kurtz explaining the potential effects of what the Perry ruling likely will do. This is especially true as the courts further disregard elements of the Constitution and the rights guaranteed therein.
Then there is the hypocrisy of all of this from the left. To a person, there isn’t a liberal who hasn’t cheered Judge Walker’s decision. At the same time, quite a number of liberals have taken issue with filibuster rules in the Senate, seeing them as a way for the minority party, especially when they are Republicans, thwart any advancement of the “progressive” (socialist, Communist; pick a word) agenda. Yet they don’t have a problem when one black-robed tyrant, or six if five members of the Supreme Court uphold the ruling, thwarts the will of seven million voters. All one can say is that they were for democracy before they were against it.
At this point, it comes down to how the Supreme Court sees this; any ruling by the 9th Circuit is immaterial except in how the Court views their decision. And when it hits the Supreme Court, if the makeup of the Court is the same, all eyes will be on Justice Kennedy, especially since he wrote the decision in Lawrence. As noted by Scalia, and cited by Judge Walker in Perry, Kennedy has already laid the groundwork for how he would probably rule, and despite the fact that he tries to pass off Lawrence as not some kind of “slippery slope” towards same-sex marriage, it’s highly likely he will cite himself in a decision that affirms it.
I somewhat agree with Ed Morrissey that maybe it’s time for the state to get out of the marriage business altogether [emphasis from original]:
We would do much better to require people to create partnership contracts in the civil context than get marriage licenses for issues like property sharing, access to family, and so on. If people want to live together and share their lives to that extent, it’s healthier and much less confusing later to have those issues expressly spelled out in an agreement up front, just like any prenuptial agreement today…
Then, if people want to get “married,” they can go to the institutions that actually care about marriage: churches, synagogues, mosques, temples, and so on. Marriage can be a private, faith-based recognition of a sacramental relationship that exists outside of the civil context entirely, and houses of faith can set their own requirements as to what it means and who can participate — just as they do now. Not only does that protect the sanctity of actual marriage much more than a government, but it also means that government has no way to poke the camel’s nose of intervention into the religious tent, as it were, to force houses of faith to conduct marriages that violate their tenets in the name of fairness.
My biggest problem with all this is how the 1st Amendment guarantee of the free exercise of religion is completely undermined, not to mention how the same thing is happening to the 9th and 10th Amendments. There is nothing in the Constitution that requires a religious belief to be non-discriminatory; in fact, a religious belief is, by definition, required to be discriminatory since religious beliefs are not easily transferable from one faith to another. But officials at all levels of government have been pushing the limits of the 1st Amendment to the point where one hardly recognizes it anymore.
As I mentioned above, I am not a supporter of same-sex marriage, or marriage equality, or whatever the phrase du jour the left wants to use. If judges and Justices actually believed the U.S. Constitution was in force, this wouldn’t be an issue. But the fact of the matter is that these black-robed tyrants don’t actually rule using the Constitution, rendering decisions outside of the rule of law, as Ambinder states with the title of his post. Every argument made by supporters of same-sex marriage could be used to convince voters to accept it; instead, they take the easy road and find a judge to do the legislative work, again in violation of the Constitution. I will never accept same-sex marriage as long as it is being forced like this. The United States Constitution allows me to do so.