This column by ACRU Senior Legal Analyst Ken Klukowski was published March 25, 2013 on Breitbart.com.
The Supreme Court will hear two historic cases this week on marriage: Hollingsworth v. Perry and United States v. Windsor. And they could fundamentally transform American society.
This would be an easy case with clear adherence to two constitutional principles. Prop 8 and DOMA would both be upheld. Now we’ll find out how those two principles fare before the nine justices currently on the Supreme Court. Part I is about Hollingsworth, and Part II is about Windsor.
This is Part I, the Hollingsworth case:
California voters passed Proposition 22 in 2000, defining marriage in that state as one man and one woman. When the California Supreme Court ruled that this violated the California Constitution, the voters of California promptly amended their constitution with Proposition 8, reaffirming marriage is between one man and one woman.
Then a legal team headed by libertarian Republican Ted Olson and liberal Democrat David Boies filed suit, alleging that Prop 8 in the California Constitution violates the Fourteenth Amendment to the U.S. Constitution and must be struck down. Doing so would also invalidate all traditional marriage laws in all 50 states; same-sex marriage would be mandated nationwide.
The two statewide elected officials responsible for defending California’s laws and Constitution abdicated their responsibilities, refusing even to show up in court. So Charles Cooper–a national heavyweight Supreme Court lawyer and former Supreme Court clerk who headed the Reagan-Meese Justice Department’s elite Office of Legal Counsel–teamed up with the Alliance Defending Freedom, whose marriage team is lead by Austin Nimocks. They represent the official sponsors of Prop 8 to defend the amendment in court.
The case in federal district court in northern California was decided by Judge Vaughn Walker. After he ruled in the case that there is a constitutional right to demand gay marriage, he came out as a practicing homosexual who is considering marrying his gay partner. His opinion was a shocking broadside to millions of Americans, saying that religious beliefs about marriage being a man and woman are literally irrational, and that those who oppose same-sex marriage do so solely on the basis of animus (a polite legal word for unjustified hostility rising to the level of hatred).
The U.S. Court of Appeals for the Ninth Circuit affirmed Walker’s activist ruling in a 2-1 split decision, though the two in the majority scaled back his emotionalism and diatribes to make the decision more legally respectable. They tried to say this case was only about California, inserting a number of caveats to say this was not yet a national issue and should not be taken up by the Supreme Court. Those two judges are fairly described as two of the most liberal on the federal bench, and it seemed they did not think the High Court was poised to side with them.
But the Supreme Court voted to take the case. The nine justices will hear arguments in Hollingsworth on Mar. 26 and Windsor on Mar. 27.
The issue in Hollingsworth is why we have a written Constitution at all. Instead of being about fairness and equality, the Constitution is about limited government. It is about a federal government of limited powers, and denying certain other powers to the states. Then the Bill of Rights and other amendments spell out certain rights that are so fundamental that government cannot take them away.
Everything else is left to the people to decide. Congress makes laws for the matters given to the federal government in the Constitution, and the states make laws on everything else. Democracy is the norm in our republic. When a court constitutionalizes an issue, it takes the issue away from the voters forever.
Marriage is not mentioned anywhere in the Constitution. Free speech, religious freedom, the right to bear arms, and many others are expressly secured by the Constitution, but it does not say anything about marriage.
So the question in this case is about what are called implied rights. The Court has held there is an implied right to marriage. But because implied rights were never directly adopted by We the People into the Constitution, courts must define them narrowly. To do more would be to subvert democracy and insert judges’ personal policy preferences for those of the people.
The test the Supreme Court applies to define an implied fundamental right–reaffirmed in the 2010 gun-rights case McDonald v. Chicago–is whether it is essential to an American scheme of ordered liberty. To determine if it is, the Court asked whether it is deeply rooted in the history and traditions of the American people. That is: was the right recognized at the founding of the republic in 1789, and has it enjoyed widespread and almost universal acceptance from then until now in 2013?
Only one form of marriage fits that description: the marriage of one man and one woman. On those rare occasions when the Court has struck down a law limiting marriage–such as Loving v. Virginia in 1967 when the Court struck down a state law that did not allow black men to marry white women–it was always a man and a woman. Of course, in Loving, the Court currently held that the central purpose of the Fourteenth Amendment was to end racial discrimination, which was what that Virginia law was all about. But when the Court has been asked to recognize a right to any other form of marriage, such as the 1878 case Reynolds v. United States asking for a right to polygamy, the Court correctly held there was no such right.
The plaintiffs in this case say Prop 8 violates the Equal Protection Clause of the Fourteenth Amendment. But that clause only applies what is called “strict scrutiny” when a fundamental right is burdened. That is not the case here, since gay marriage is neither found in the Constitution’s text nor deeply rooted in American history and tradition.
Instead, the Court should apply “rational-basis review,” asking only whether the voters or the legislature thought the law was reasonably related to advancing any legitimate public interest. In other words, it can only be struck down if voters are literally irrational in thinking marriage should be one man and one woman.
It is possible that the case could be kicked out on a technicality called standing, but that is extremely unlikely in this case. It is also possible the Court could decide it on narrow grounds that only apply to California, but that is also unlikely for a number of arcane legal reasons. Most likely, if Prop 8 is struck down, it will be because the Court declares there is a fundamental right for all consenting adults to marry anyone they want, overturning more than a century of precedent.
If that happens, it is hard to imagine how this does not also create a right to polygamy. If marriage is the union of consenting adults, there is no legal principle to explain why it is only two. Over 50 nations on earth have legal polygamy, and many of those people are denied immigration into this country because we refuse to recognize their polygamous marriage that is recognized by their religion (usually Islam) and perfectly legal in their country. Studies show there are 600,000 polygamists in America today, whose marriages are not recognized.
Therefore, this case is about far more than gay marriage; it is about fundamentally redefining the concept of family in this nation and as Western Civilization has recognized it for more than 2,000 years.
Hollingsworth is a test case on whether the Supreme Court adheres to the purpose of having a written Constitution–the first and oldest written constitution in the world–and is faithful to its text, structure, and original meaning. If the Court stays true to its constitutional principles, it will uphold Prop 8 and allow each state to define marriage according to the wishes of its voters.