Brian W. Raum is senior counsel and head of marriage litigation for the Alliance Defense Fund and is a member of the ProtectMarriage.com legal team defending the California marriage amendment in the federal lawsuit Perry v. Brown.

Recently, ACLU Executive Director Anthony D. Romero reportedly boasted about a "robust list of lawsuits" his organization has filed in federal courts across the nation seeking to strike down the Federal Defense of Marriage Act, which defines the word "marriage" for all federal purposes as the exclusive union of a man and a woman. Evidently, the ACLU is taking credit for the pending DOMA challenges in California, Massachusetts, Connecticut, and New York, and Romero claims that "many more are being prepared in a half-dozen more states."

Romero stated that "[the ACLU] should have been taking the[se] caseslong before now" but that they were now making up for it and "will not rest until all Americans are given equal treatment in marriage." He went on to proclaim that "the entire issue will go to the U.S. Supreme Court next yearwhich is fine with [the ACLU] because we believe the Constitution is on our side."

Putting aside the fact that the ACLU is counsel of record in only one of the federal DOMA challenges listed above, this is a very curious change of strategy. Quite recently, the ACLU, along with virtually all the national groups seeking to advance the homosexual legal agenda, issued memos urging their folks not to file federal lawsuits seeking to redefine marriage. For instance, in June 2008, the ACLU, Lambda Legal, National Center for Lesbian Rights, and others issued a memo titled, "Make Change Not Lawsuits." Contrary to Romero's recent proclamation, this coalition unequivocally argued that it was not time to bring the issue of same-sex "marriage" to the Supreme Court. They contended,

"Even the strongest gay rights case the Court has decided"”the Lawrence case striking down laws against intimacy for gay couples"”said it was not going to say anything about formal recognition of same-sex relationships. There are also serious risks if we go to the Supreme Court and lose, especially if we've asked it to set aside state limits on marriage".

Again, on May 27, 2009, the same day that the federal challenge to California's Proposition 8 in Perry v. Schwarzenegger (now Perry v. Brown) was announced, the ACLU and friends issued two additional advisories. One of them, "Why the ballot box and not the courts should be the next step on marriage in California," discouraged federal challenges to state marriage laws in a section headed, "History says the odds at the Supreme Court now are not so good." This memo actually supported letting the people vote on marriage. The people of California were not interested in overturning Proposition 8, however, so the effort was abandoned for fear the vote would not go the way the ACLU wanted. That same day the ACLU released an updated version of the "Make Change, Not Lawsuits" memo which reiterated a non-litigation strategy for marriage redefinition.

But between May 27, 2009 and July 8, 2009, a seismic change apparently occurred in the ACLU's litigation philosophy. The ACLU coalition seems to have taken an "if you can't beat "em, join "em" approach and filed a motion to intervene as plaintiffs in the Perry case.

The newly formed American Foundation for Equal Rights, the group responsible for funding the Perry case, did not take too kindly to the ACLU's effort to intervene and responded with a very strongly worded letter:

"Given our willingness to collaborate with you, and your efforts to undercut this case, we were surprised and disappointed when we became aware of your desire to intervene. You have unrelentingly and unequivocally acted to undermine this case even before it was filed. In light of this, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening. Therefore, we will vigorously oppose any motion to intervene. In public and private, you have made it unmistakably clear that you strongly disagree with our legal strategy to challenge Prop. 8 as a violation of the Due Process and Equal Protection Clauses of the United States Constitution. Your strident criticism of our suit has been constant."

But now, Romero purports to welcome Supreme Court review of marriage as soon as possible because he thinks the Constitution is on his side. Neither the Court nor the law, however, has changed in any appreciable way since they sent out the latest "Make Change, Not Lawsuits" advisory. That memo is very clear concerning their assessment of the Supreme Court. Curiously, even as Romero announces the imminent filing of more lawsuits, the "Make Change, Not Lawsuits" memo is posted on their website with a stern caution against bringing a marriage law challenge to the Supreme Court because, in the words of the ACLU, "The history is pretty clear: the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states." On the other hand, the National Center for Lesbian Rights and Lambda Legal removed the same memo from their websites. Confused?

The fact remains that a majority of the Americans continue to support marriage as only the union of one man and one woman, and the vast majority of states continue to define marriage as it has historically been defined. And while New York recently became just the sixth state to deviate from that, the Maryland legislature rejected the same effort this year, and the Minnesota legislature voted to place a marriage protection amendment on their state ballot in 2012. So what happened to the ACLU and company's assessment of the Supreme Court's historical reluctance to "get too far ahead of either public opinion or the law in the majority of states?" Apparently, that thinking has been abandoned "“ at least publicly.

And what about Lawrence v. Texas, which "“ the ACLU correctly acknowledges "“ lends no support for formal government recognition of same-sex relationships? The majority explains that the case:

"[D]oes not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." [emphasis added]

The point is obvious. Lawrence is narrow in its application, and if any of the circumstances set out above were present in that case, the result could have and likely would have been different. The theme in Lawrence is liberty. In fact, the word "liberty" appears twenty-five times in Justice Kennedy's seventeen-page opinion. Right or wrong, the case clearly stands for the limited proposition that government cannot criminalize homosexual behavior between consenting adults in the privacy of their home, but it in no way supports marriage redefinition. The ACLU obviously agrees "“ or did agree.

And such an understanding of the central holding in Lawrence is perfectly reasonable because the law need not promote everything it protects. The Constitution contains an equal protection clause, not an equal promotion clause. We see this dynamic at work in our First Amendment jurisprudence. Freedom of speech is a fundamental right and protects our right to espouse ideas that may be offensive and even antithetical to our American institutions. But the government need not endorse or promote those ideas. For example, while the law protects one's right to tout the virtues of communism, our law need not and does not promote that sentiment.

The government's endorsement, recognition, and regulation of natural marriage is, in essence, a form of government expression. But not all marriages are encouraged or even permitted (e.g., incestuous, polygamous, and, in most cases, underage marriages) because as a society we have determined that these relationships for different reasons do not promote the common good.

Marriage has always been society's way of endorsing and promoting legally binding relationships between men and women for the good of all. The government saw that it was good for men and women to be legally bound "“ especially for the sake of children, which inevitably result. We have celebrated the idea that through this institution the next generation is produced, nurtured, and educated; therefore, the government can take a constitutionally justified position that this time-honored, natural family structure is the most beneficial to society over all others. This is the message of marriage, and it is a rational one.

Those who seek to redefine marriage understand that it is only through marriage redefinition that society can go from the protection of homosexual behavior set out in Lawrence to the promotion, endorsement, and celebration of same-sex relationships sought in Perry v. Brown and in the current challenges to federal DOMA. These cases are much more about engineering societal approval of same-sex relationships than anything else.

Romero now claims to embrace Supreme Court review of marriage because, in his words, he "believes" the Constitution is on the ACLU's side. While it's one thing to believe the Constitution is on your side, it is quite another to convince the Supreme Court of that "“ especially in light of the great weight of history and legal tradition protecting natural marriage.

Consider this: to date, every appellate court, both state and federal, to have considered the very same federal claims made in the pending marriage challenges, has rejected them "“ including the Supreme Court itself in Baker v. Nelson. So it appears that the only thing that has changed for Romero is his mind.

Posted in Featured, Same-Sex Marriage

Recommended Citation: Brian Raum, If you can’t beat ‘em, join ‘em, SCOTUSblog (Aug. 18, 2011, 11:34 AM), http://www.scotusblog.com/2011/08/if-you-cant-beat-em-join-em/