Marriage on the Ropes: The Hollingsworth Case

For most Americans, the Supreme Court cases that were heard on March 26 and 27 were legal arguments about same sex marriage. They weren’t.

The two cases – Hollingsworth v. Perry (aka the California Proposition 8 case appealed up from the 9^th Circuit) and US v. Windsor (aka the constitutionality of the Defense of Marriage Act appealed up from New York’s 2^nd Circuit) – are manifestations of a larger issue: namely, does federalism work?

The Founders of the Republic were passionate in their protection of liberty at the state level, believing that if people were free to live their lives as they wanted as states they would be free to do so as a nation. The reverse was not necessarily true. As colonies, they had felt the heavy hand of central government and had fought a war to throw it off. Predictably, then, the 55 men who met in Philadelphia in the summer of 1787 were suspicious about the aims of their project. Therefore, the document they produced to create a federal government was, to the chagrin of the current President, a document of “negatives.” The US Constitution they created says what the federal government – Congress and the Executive – cannot do or is limited in doing.

Both the virtue and the shortcoming of federalism is that it allows states to do what they want to do as long as a state’s laws and liberties don’t trump the rights of other states. In Federalist 45 Madison set forth the concept of federalism:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.

“…all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.” Marriage would certainly fall in that category. It concerns the lives and liberties, and the properties of the people, and the internal order, improvement, and prosperity of the State.

But nowhere in the US Constitution is marriage mentioned or its regulation allowed. Unless Madison’s attempts in 1788 to sell the US Constitution and its new form of federal government to the various state ratification committees were lies, the federal government has no say in marriage.

Marriage predates government. Its legacy spans millennia. Christians and Jews believe that legacy is traceable back to a covenant relationship created by God in Eden between one man and one woman – initially Adam and Eve. Mark Twain wrote a number of short stories around the theme of Adam and Eve, among them, Eve’s Diary, in which Eve catalogs her life from her creation until her death. It wasn’t an easy life. Having been expelled from their idyllic life in Eden, Eve gave birth to two sons, one of whom killed the other. Adam toiled to produce food from an earth whose abundance was now cursed. But through all of their hardships they had each other, the most valuable thing salvaged in their expulsion. The story ends with Adam standing beside Eve's grave saying, "Wherever she was, there was Eden."

There is good reason why the laws of 41 states affirm marriage is between one man and one woman. Marriage, not government, is the most crucial institution for building civil society. Research has repeatedly shown that children benefit when they are raised by both parents and they suffer when one parent is missing. Often the state has to intervene either to help provide for single parent children or to take over the parenting role. Children raised by a man and woman who are married to each other do better in school and are less likely to get in trouble with the law, less likely to get pregnant out of wedlock, to commit suicide, or to live in poverty. Not so when their parents aren’t married.

I was a single parent from the time my son was less than five years of age until he was past eleven when I remarried. I know firsthand the challenges of child-raising alone. Those challenges weren’t about needing someone to assume a share of the work. They are about needing someone to share in the emotional demands of the child. Some of those demands are gender-specific. Even if I were inclined to have another guy around to help, perhaps a brother, he couldn’t help in those instances in which I came up short – for the same reason that I came up short. What my son needed in those instances was a woman – a woman’s touch, a woman’s personality, a woman’s understanding – none of which I could provide as much as I wanted. It’s been said that a child learns justice from his father and mercy and understanding from his mother. Parent roles are different. And they are irreplaceable by two people of the same sex.

I remarried, had three more kids, and will soon celebrate 39 years of happy, successful marriage. Raising children with a mother, a woman, and a wife made all the difference. I benefited and was a better father – not because I wanted to be, but because I was able to be. My children benefited because both poles of their needs were available in a father and mother, which wouldn’t have been possible if one of us was missing or if both of us were men or women, no matter how well intentioned or caring they might be.

The purpose of marriage is procreation. After their creation, God told Adam and Eve to “be fruitful and multiply and fill the earth.” While some couples can’t or choose not to have children, it’s a proven fact that human generations that don’t produce an average of 2.3 children per male-female couple don’t replace themselves (given normal mortality). Thus, for a society to grow it must produce more than 2.3 children per couple. Otherwise a society shrinks to the point that it can’t produce enough children to reverse its decline. Its social institutions become threatened. Just look at the American Social Security System which is birth rate-driven. Due to abortion and low birth rates, native populations around the world are being overtaken by immigrant populations whose birth rates are higher. Most notably this is occurring in Russia and Western Europe. It is beginning to happen in this country. Same sex marriages can’t procreate.

While same sex unions have been in existence for decades. Same sex marriages are a relatively recent innovation due to the legal definitions of marriage by states. Same sex parenting is even more recent. Therefore, it’s impossible to apply rigorous methodology in long-term longitudinal studies of large scale populations to demonstrate whether the outcomes of same sex parenting are comparable to opposite sex parenting. In fact in the arguments before the Supreme Court Justice Alito observed that the Internet and cell phones have been around longer than same sex marriage anywhere on the planet, causing Justice Kennedy to observe that “we have five years of information to weigh against 2,000 years of history or more.”

One of the cases in dispute before the Court is Hollingsworth v. Perry (initially Perry v. Schwarzenegger, then Perry v. Brown)

In 1977 California passed a law explicitly stating that marriage is “a personal relation arising out of a civil contract between a man and a woman.” In 2000 61% of Californians voted in favor of a ballot initiative, called Proposition 22, that would define marriage in their state as between a man and a woman, changing the California Family Code. By ballot initiative, this was a statutory change, not a constitutional change.

In 2004, San Francisco Mayor Gavin Newsom performed same sex marriages that were later annulled. This led to a lawsuit which ended with the California Supreme Court striking down Proposition 22 in a narrow 4-3 decision that claimed it violated the state constitution. Opponents of their ruling, therefore, qualified Proposition 8 to be on the 2008 ballot as the “California Marriage Protection Act” to amend the state constitution with explicit language defining marriage as between one man and one woman. It passed by a margin of almost 5%. Proposition 8 opponents filed suits, challenging its constitutionality, which was ultimately upheld by the California Supreme Court. Prior same sex marriages were “grandfathered” in as legal, however.

Two same sex couples sued in federal court, claiming that the Prop 8 state constitution amendment violated their rights under the US Constitution. Oddly the plaintiffs were represented by Ted Olsen, who had represented George Bush in the 2000 election fiasco and whose wife was killed aboard the Pentagon 9/11 crash, and David Boies, who had represented Al Gore in the disputed 2000 election. They are at opposite ends of the ideological spectrum – Olsen a conservative Libertarian and Boies a left of liberal Democrat. But both are passionately sympathetic to gay rights, albeit for vastly different ideological reasons.

Attorney General Jerry Brown and Governor Arnold Schwarzenegger refused to defend Prop 8 in federal court – despite having sworn to uphold the California constitution upon assuming their offices. Therefore ProtectMarriage.com led by Dennis Hollingsworth, a former state senator, became the defendants. They were represented by Charles Cooper, considered among the top ten civil litigators in the country.

Despite the fact that marriage is a state issue, Federal District Judge Vaughn Walker accepted the case. In a mind-boggling ruling, Walker decided that Prop 8 violated the equal protection and due process clauses of the 14^th Amendment. Even more astonishing, after presiding over the case Walker retired and confirmed that he had been in a 10-year same sex partnership – meaning that he had ruled to overturn a statute that prevented his own right to marry. He saw no conflict of interest in failing to recuse himself from the case nor did the notoriously overturned 9^th Circuit Court of Appeals, which affirmed his decision while staying it for appeal to the US Supreme Court.

Cooper teamed up with the legal arm of the Alliance Defending Freedom to become co-counsels in representing Hollingsworth before the Supreme Court. It was argued on March 26.

Why do we have a written Constitution? To limit the power of the federal government by specifying which powers belonged in Washington. All other power belongs to the people and states to decide for themselves. The ratification process was halted in 1788 by Massachusetts until this was made explicitly clear by the first ten amendments of the Constitution called the Bill of Rights.  As other fundamental rights became evident, they were explicated in subsequent amendments preventing government from interfering with their free exercise. It should be clear to even the most casual observer that a written Constitution was a response by free citizens to express their aversion of government.

The right of same sex couples to marry is really a sideshow in the Hollingsworth case. The real issue is whether the US Supreme Court itself will obey the Constitution it has sworn to uphold. Since the US Constitution is silent on marriage, it can only be a federal issue if it is an implied right not explicitly specified by the Framers. This takes the Court off into the Never Never Land of divining what was in the mind of the Framers in 1787. When the Constitution is explicitly silent, judicial restraint should compel the Court to interpret that silence very narrowly, which it often hasn’t – as in Roe v. Wade and its discovery of the “right to privacy” that had been hiding in the 14^th Amendment for 185 years. The nation and the Court have been paying for that terrible decision for almost 40 years. Abortion was and still should be a state issue.

This country is a democracy at its roots. While we govern in a republican form, we elect in a democratic form except in presidential elections. Voters at the state level should determine how they want to be governed provided their decision doesn’t violate the US Constitution interpreted in the narrowest manner by the federal court system. When the federal court system “constitutionalizes” an issue – as it did in Roe v. Wade – it takes it out of the voter’s hands forever by virtue of precedent, and thereby, shifts power from the state to the federal government.

As to the issue of marriage and the Constitutional silence regarding it, it seems logical to me to ask how marriage was practiced when the Constitution was written. In what form has marriage had widespread social and legal acceptance in the intervening years until now? There can only be one answer to both questions: between one man and one woman. Men have been “married” to multiple women at the same time and possibly women have been “married” to multiple men at the same time. I suppose a person could “marry” his dog or her house. But none of those forms is widespread or socially and legally accepted as marriages. The same is true of same sex marriages.

The claim made in Hollingsworth v. Perry is that the US Constitution makes California’s constitutional definition of marriage unconstitutional. Okay. Was there ever a time in the history of the Republic that same sex marriage was constitutional? When did the restricted definition of marriage – i.e. between one man and one woman – become unconstitutional? What caused that definition to become unconstitutional? Logic compels those questions to be asked. Logic, not feelings, ought to able to answer them.

For example, was racial discrimination constitutional at any time in the history of the Republic? Yes. It was widespread and it was socially and legally accepted although many people felt it was wrong. Is it constitutional today? No. When did it become unconstitutional? In 1868. What caused it to become unconstitutional? The passage of the 14^th Amendment which forbids states from engaging in racial discrimination either by law or practice. Thus, Brown v. Board of Education ended segregated schools when the practice was declared unconstitutional in 1954 although the practice of segregated schools became unconstitutional in 1868.

Are the state laws allowing same sex marriage unconstitutional? No. Nine states legally recognize same sex marriages. As long as married same sex couples have legal residence in one of those nine states, their marriage is legally recognized in the same way that opposite sex marriages are recognized. But if a same sex couple moves into one of the 41 states that do not legally recognize same sex marriages, their marriage loses its legal standing. That fact is the subtext of the Hollingsworth case – to nationalize same sex marriage by judicial fiat.

Isn’t the refusal of 41 states to legally recognize same sex marriage a form of discrimination – which is prohibited under the 14^th Amendment? No, for two reasons. First, the US Constitution is silent on marriage but explicitly says “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” in the 10^th Amendment. Marriage is thereby a state issue. Second, the background of the 14^th Amendment is about racial discrimination and about participation of the former Confederacy in the postwar political process of the US. The Amendment enshrined the Civil Rights Act of 1866 in constitutional trappings so it couldn’t be undone by the Supreme Court or a future Congress, and it negated the Black Codes that were passed in the South on the heels of the passage of the 13^th Amendment, which outlawed slavery.

Could the 14^th Amendment be interpreted more broadly to cover other forms of discrimination – like the prohibition by states of same sex marriage? Yes. The intent of the framers of the 14^th Amendment could be ignored as it was in Roe v. Wade. But the Court has been previously asked to recognize Mormon polygamy as a right under the 1^st Amendment – freedom of religion – in the 1878 Reynolds v. United States case. The Court ruled no “right” to polygamous marriage existed. Thus, the Court has a precedent for saying marriage outside of its traditional form is not a constitutional right.

Not only is polygamy in all of its forms – multiple wives, multiple husbands, group marriage – not recognized in any state, but its practice is also criminalized. In contrast, same sex marriage is not recognized in 41 states but is not criminalized. Any case alleging discrimination because a same sex marriage isn’t legally recognized in 41 states would have to get around that fact.

Moreover, couples who want their same sex union to be recognized as marriage have the right to move into one of the nine states that will accommodate them just as people who disapprove of their state’s policies are free to move to another state. That’s the way federalism works.

To the supporters of same sex marriage none of this seems fair. But the US Constitution is not about being fair. It’s about being just. There's a big difference.

In next week’s blog I’ll discuss the US v. Windsor case and the Defense of Marriage Act.