Kennedy’s Opinion ‘Damages’ Marriage and ‘Erodes’ the Court’s Reputation, ACRU Says

WASHINGTON D.C. (June 26, 2013) – “Once again, the U.S. Supreme Court has intervened to take sides in a raging cultural debate, this time over the radical redefinition of society’s premier institution – marriage,” said American Civil Rights Union Chairman and CEO Susan A. Carleson. “The majority opinion damages marriage and further erodes the Court’s reputation as a neutral, authoritative interpreter of the Constitution.

“The good news is that the court’s error has not been imposed on all the states and this will give marriage proponents more time to make the case that marriage is unique, irreplaceable and deserves protection in the law.”

In a 5-4 ruling authored by Justice Anthony Kennedy, the Court struck down the portion of the Defense of Marriage Act that denies federal benefits to couples not composed of one man and one woman. The ruling applies to the District of Columbia and the 12 states that have legalized same-sex “marriage.” Kennedy cited the Fifth Amendment’s Equal Protection clause.

Kennedy’s earlier majority opinions struck down Colorado’s voter-approved Amendment Two (1996) barring the use of “sexual orientation” as a civil rights class, and Texas’ anti-sodomy law (2003).

In a related case, in a 5-4 ruling written by Chief Justice John Roberts, the court denied standing for defenders of California’s Proposition 8 constitutional marriage amendment and remanded the case back to the court where U.S. District Judge Vaughn Walker struck down Prop 8, which California’s voters had approved in 2008. ACRU Policy Board member Charles J. Cooper headed the Prop 8 defense team.

Walker wrote that he could find no reason for defining marriage in the law as the union of one man and one woman other than “animus,” that is, hatred toward homosexuals.

In a Supreme Court brief filed in the combined cases, the ACRU argued that, “Lower courts have misapplied the central finding in a previous case in their rulings against a federal law and a California constitutional amendment that define marriage as the union of one man and one woman.”

Earlier opinions relied heavily on the 2003 U.S. Supreme Court ruling in Lawrence v. Texas, which struck down state anti-sodomy laws. The ACRU brief, written by General Counsel Peter Ferrara, gives three reasons why that case does not apply to either the California Prop 8 case or the federal Defense of Marriage Act (DOMA):

“First, Lawrence was a privacy and liberty case, which is why Lawrence itself said that its holding and reasoning did not involve the issue whether government must redefine marriage to include same-sex relationships…

“Second, even when the Constitution prevents governments from prohibiting certain conduct, it does not require them to promote or facilitate it…

“Third, the traditional definition of marriage has existed throughout the world for centuries and has been reaffirmed by a substantial majority of States and the Federal Government.”