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

Some rights are so foundational to our system of government that we deem them "fundamental." In his response to my earlier post in the SCOTUSblog marriage symposium, Robert Levy states that, under our current constitutional construct, a right is deemed fundamental if it is either "implicit in the concept of ordered liberty" or "deeply rooted in the Nation's history and traditions." But what he has missed is that it is not "eitheror." Rather, in the words of the U.S. Supreme Court in Washington v. Glucksberg (1997), fundamental rights are those "which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed."

In other words, these rights are not arbitrary or secondary. They are primary: the right to life, the right to the free exercise of religion, and the rights to free speech and association.

Levy, however, seems to believe that all rights are created equal. In fact, he argues that the "Court should abandon its incoherent hierarchical ranking of rights." But a fundamental right is not a garden-variety right to be genetically engineered, planted, harvested, and cast into the basket with all the other "rights." The Supreme Court has correctly recognized the profound need for judicial restraint when it comes to the creation of new constitutional rights. The Glucksberg majority emphasized that this standard is a strict one, because once something is recognized as a fundamental right, "to a great extent, [it] place[s] the matter outside the arena of public debate and legislative action."  Instead, it places policy decisions in the hands of, in most cases, unelected judges "“ an idea contrary to the most basic understanding of the Founders' intent.

The Founding Fathers understood corruption of power and, because of this understanding, built a decentralized government where the people either directly or indirectly vote on issues of public policy. There is nothing more central to public policy than marriage. It is this government policy that arguably affects the public more than any other. So when the public recognizes the universal importance of maintaining, protecting, and promoting society's most foundational institution as the exclusive union between a husband and a wife, we should proceed with extreme caution and trepidation at the prospect of creating a new "fundamental right" to same-sex "marriage" in our Constitution.

Levy frames the "threshold question" as, "Whose rights have been violated and must therefore be protected by government when a homosexual couple marries?" But this is not the question at all; the question is whether there is in fact a constitutional right to same-sex "marriage." And under the proper standard of constitutional review, marriage as historically defined is presumed constitutional unless the one challenging this time-honored definition can prove that the definition is not rationally related to any conceivably legitimate government interest. The standard favors judicial restraint and promotes legislative discussion, debate, and deliberation. Not only that, but even if the government's interests are merely debatable, the law must be upheld as constitutional.

Apparently, though, this is of no concern to Levy, who props up government interests like straw men and then seemingly knocks them down effortlessly, such as the governmental interest related to "procreation." Levy dismisses this simply because some couples who cannot or choose not to have children are permitted to marry. But this is a complete mischaracterization of the interest itself. The government has an interest in promoting an institution to increase the likelihood that children will be born to and raised by their natural married parents. The fact that some couples will not have children does not undermine this interest in the least, especially in light of the fact that children are inevitably "“ sometimes unintentionally "“ produced when men and women come together. Not so with same-sex couples.

Not only that, but mothers and fathers bring different gifts to the parenting table, and this complementarity is not fungible. Even the plaintiffs' expert in Perry v. Brown agrees on this point. Dr. Michael Lamb, the "parenting expert" who testified in that case, readily acknowledged in his book Fathers: Forgotten Contributors to Child Development that "[b]oth mothers and fathers play crucial and qualitatively different roles in the socialization of the child."

And what about all of the studies that purportedly demonstrate, as Levy contends, that "children do just as well when raised by same-sex parents." Just as well as what? Consider this finding from Kristin Anderson Moore, et al., in 2002: "it is not simply the presence of two parents, but the presence of two biological parents that seems to support children's development [R]esearch clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage." And this from another study by Wendy D. Manning and Kathleen A. Lamb, published in 2003: "The advantage of marriage appears to exist primarily when the child is the biological offspring of both parents." I could go on and on regarding the utterly unreliable, debatable, and irrelevant nature of the "studies" to which Levy refers, but suffice it to say, there is no long-term study that compares children raised by same-sex parents with children raised by their biological married parents.

All of this leads to an additional government rationale for marriage that Levy does not even mention: the state's interest in taking a wait-and-see approach before jumping headlong into the most significant social experiment of our time. Because no one knows the long-term extent of the effects that redefining marriage laws will have on society, and children especially, it is patently rational for a state like California to wait to see how this radical concept plays out in other jurisdictions.

As Nancy Cott, the plaintiffs' marriage historian in the Perry case, stated during the district court proceedings, same-sex "marriage" is a "highly distinctive," "watershed," and "turning point" event in the history of marriage, and it "definitely has an impact on the social meaning of marriage," which will "unquestionably [have] real-world consequences," but, as she noted, it is "impossible" to know the consequences because "no one predicts the future that accurately."

Posted in Featured, Same-Sex Marriage

Recommended Citation: Brian Raum, Marriage does not consist of straw men, SCOTUSblog (Aug. 25, 2011, 9:44 AM), http://www.scotusblog.com/2011/08/marriage-does-not-consist-of-straw-men/