Comment And Analysis

By 5TJT Staff

We are deeply saddened by the trajectory of last week’s Supreme Court ruling concerning the Defense of Marriage Act (a.k.a. “DOMA”). The ruling struck down the provision enacted by Congress in 1996 that had defined marriage, for the purpose of all federal laws, regulations, and benefits, as meaning only a legal union between one man and one woman as husband and wife.

Moral Failures

The Founders of this great nation embraced the idea of building a moral and virtuous society that would enable all peoples to fulfill their inalienable rights as well as their inalienable duties.

These inalienable rights and duties are part of what can be called Natural Law. From Moses to Cicero, to Washington, Jefferson, and Franklin, Natural Law has always defined the distinction between that which is just and that which is unjust, between right and wrong. The idea of the Nuremberg Trials was characterized by Natural Law, since according to Nazi German law the murder of Jews, gypsies, and others was entirely legal. No society or government should be able to promulgate laws or rules that undermine Natural Law. Just as a government is proscribed from legalizing murder and theft, so too may it not undermine other natural laws.

Marriage has been defined by the very fabrics of history, universal cultural norms, and Natural Law as being between man and woman. Marriage combines in a union of life, love, and fidelity two people capable of fathering and mothering offspring. It is more than mere kinship or friendship; it is a social and legal bond designed to procreate and continue the existence of mankind. Undermining this institution can also undermine the very future of mankind.

Furthermore, once we begin to redefine the basic integrity of the family structure in this nation, state, or city, we begin to slide down a slippery slope. It will lend legitimacy to those who wish to allow marriages to one’s sibling or child, and even to those who wish to enter into the bonds of matrimony with favorite pets and animals.

Modern social science has demonstrated the need for both a mother and a father to help foster the normal psychosocial development of children. While this is not always possible, government should make every effort to support the best environment in which to raise children. Redefining marriage will lead to a disaster similar to that which Romania experienced in its orphan crisis in the late ’60s and early ’70s, a situation where thousands of children were raised outside the normal family structure. The results were catastrophic and dysfunctional behaviors.

To redefine marriage is an insidious attempt to undermine the beliefs and principles of those who uphold the sanctity of Natural Law. It is an insult to Christians, Muslims, Jews, Hindus, and practitioners of other religions of this great nation.

As citizens of this nation, we are dismayed and troubled by the judicial repeal of the Defense of Marriage Act. This ruling of the Supreme Court, the consequences of which are already being felt and which will almost certainly be broadened in future cases, is sure to stand in infamy alongside Roe v. Wade and other judicial power grabs that have weakened our democracy, corroded the rule of law, and debased public morality.

Legal Failures

The Supreme Court’s ruling in the DOMA case, United States v. Windsor, came on the same day as its ruling in another same-sex marriage case–Hollingsworth v. Perry, which had the effect of legalizing same-sex marriage in California.

In 2008, a California statewide voter initiative known as Proposition 8 had successfully amended the state’s Constitution to define marriage there as a union between a man and a woman. The Federal courts then ruled to strike down Prop. 8–which had itself been undertaken by the people of California in response to an earlier state supreme court ruling that traditional-marriage statutes violated the California Constitution–as purportedly violating the U.S. Constitution. In last week’s Perry case, the Supreme Court allowed those rulings to stand. As a result, it is now estimated that by August of this year, when additional state laws permitting such “marriages” go into effect, 30 percent of all Americans will reside in states where same-sex marriage is legal.

Both of these Supreme Court cases were decided by 5—4 votes, but the outcome in the California case was decided on technical grounds and was not split along the usual ideological lines. California state officials refused to defend Proposition 8 in court, and Chief Justice Roberts, along with Justices Scalia, Ginsburg, Breyer, and Kagan, agreed that the official proponents of the original initiative, who brought the appeal, were now ordinary citizens who were not suffering any specific injury and did not have any legal standing in the case. Justices Kennedy, Thomas, Alito, and Sotomayor dissented. So, although the outcome was, from our perspective, deplorable, it does not represent the Supreme Court’s opinion one way or the other as to whether the Constitution protects a “right” to same-sex marriage.

Not so with the DOMA case. Despite its failure to clearly articulate the specific constitutional grounds for striking down the law–a failure acknowledged even by liberal analysts–the Court dispensed with several of its precedents and seemed to find that there was no rational basis for Congress’s preservation of the traditional definition of marriage. Instead, it found that DOMA was motivated by a “bare desire to harm” couples in same-sex marriages, who are now a “protected class” of citizens in those states that recognize their marriages. It then abruptly adds, “This opinion and its holding are confined to those lawful marriages”–that is, to marriages in those particular states–as if to abdicate any responsibility for what will happen when judges, including those on the Supreme Court, later apply the basic reasoning of this opinion to future cases involving other states.

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Although there were legal considerations similar to those in the California case that should have also prevented the Court from ruling on the merits of DOMA, the majority that signed onto the ruling (Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan) broke with all precedent on questions of jurisdiction, in order to strike down the law and assert an expanded view of judicial power and supremacy over the other branches of government.

In the DOMA case, both the woman who brought the suit (Edith Windsor) and the federal government agreed that the law was unconstitutional and that the lower-court ruling should be upheld. Famously changing his mind from his previously declared stance on the subject, President Obama had announced his support for the legality of same-sex marriage and, although he continued to enforce the law, he instructed the Justice Department not to defend it in court. Because the parties agreed on what the outcome should be, there was actually no legal controversy over which the Supreme Court could legitimately rule.

As amply explained in Justice Scalia’s dissenting opinion, the Constitution limits the judicial power of the federal courts to resolving “Cases” and “Controversies,” which (until now) has always specifically been interpreted to mean that there must be parties who seek opposite outcomes in a particular case:

“Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress. … That is completely absent here. … The final sentence of the Solicitor General’s brief on the merits reads: ‘For the foregoing reasons, the judgment of the court of appeals should be affirmed’ (emphasis added). … One could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it. … [These] proceedings have been a contrivance, having no object in mind except to elevate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States.”

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In short, the Supreme Court chose a case in which it has no jurisdiction, in order to play a legal role it does not have, to invent a constitutional right that does not exist, based on a legal framework it is not able to justify–but which explicitly lays the grounds for a radical and destructive conclusion it pretends not to have reached. v


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