This essay for our symposium on same-sex marriage at the Supreme Court comes from William J. Olson and Herbert W. Titus, of William J. Olson, P.C.  They filed an amicus brief on behalf of the Capitol Hill Prayer Alert Foundation et al., supporting a cert. petition in Bipartisan Legal Advisory Group of the United States House of Representatives v. Gill, and an amicus brief for Public Advocate of the United States et al., supporting a cert. petition in Hollingsworth v. Perry.  In 2003, they filed an amicus brief supporting the State of Texas in Lawrence v. Texas.

Defense of Marriage Act

The Defense of Marriage Act (“DOMA”) was signed into law by President Clinton on September 21, 1996, and has taken fully sixteen years to wind its way to the Court.   Hundreds if not thousands of pro-family organizations are hoping that certiorari would be granted and the First Circuit decision overturned.  It seems to be the consensus view that the Supreme Court would want to hear this case.  Indeed, only three amicus briefs were filed in support of granting certiorari, including our brief for various nonprofit organizations and others, including Capitol Hill Prayer Alert Foundation, U.S. Justice Foundation, Citizens United, and Young America’s Foundation.  However, we had a special reason for filing our brief.

While our brief argued that certiorari should be granted, we did not want the issues to be limited to the two questions presented by the petitioner – both of which rest upon the assumption that the Fifth Amendment’s Due Process Clause imposes an “equal protection” limit on the exercise of Congress’s Taxing and Spending Powers.  The Solicitor General’s petitions stated the issue similarly –  whether DOMA “violates the Fifth Amendment’s guarantee of equal protection of the laws” – a construction that pretends that the Fifth Amendment is identical to the Fourteenth Amendment.  This rhetorical masquerade cried out for someone to state that this particular emperor has no clothes.

Therefore, our amicus brief urges the Supreme Court to take a step back and add to the questions to be addressed whether Section 3 of DOMA violates the Fifth Amendment due process guarantee as it is written, not as it has been creatively construed by prior Court decisions.  That is, is there really an “equal protection component” to be found within the Fifth Amendment’s Due Process Clause?

Among the many illustrations of how the Court has departed from the constitutional text over the past several decades, reading equal protection into due process language surely is one of the most egregious.  First, such a construction flagrantly disregards a well-established rule of construction dating back to at least 1840: “In expounding the Constitution of the United States, every word must have its due force and appropriate meaning, for it is evident from the whole instrument that no word was unnecessarily used or needlessly added.”    If the Due Process Clause of the Fifth Amendment (applicable to Congress) contains the same Equal Protection Clause of the Fourteenth Amendment (applicable to the states), then the latter guarantee was “needlessly added” to an amendment that, like the Fifth Amendment, already contained a provision that no person may be “deprive[d] … of life, liberty, or property without due process of law.”  The Court’s reading of the Due Process Clause renders the Fourteenth Amendment’s “equal protection” guarantee superfluous.

The only reason we labor under such a contorted doctrine was a political conundrum faced by the Warren Court on May 17, 1954, when it struck down racially segregated public schools in the states under the equal protection guarantee of the Fourteenth Amendment, and believed it needed to devise a way to do the same for the Washington, D.C. public schools.    The Court chose a method of interpretation that would allow it to “disregard [the Constitution’s] deliberate choice of words and their natural meaning,” resulting in “a departure from the first principle of constitutional interpretation” that “every word must have its due force and appropriate meaning.” It is past time to re-examine this flawed doctrine.  If a petitioner fails to raise such textual issues, as they usually seem to do, this role falls to amici.

Additionally, if the Court is not persuaded by this textual argument, we urged that the Court grant the petition to review whether its various balancing tests, including strict scrutiny, intermediate scrutiny, and rational basis, are wholly unsuitable to the task of objective judicial review.  The court below added yet another empty test: “intensified scrutiny.”  All such tests are atexual, and – if not abandoned – will continue to be used inconsistently and arbitrarily by unelected judges in the unchecked exercise of raw legislative power.

California Proposition 8

Our amicus brief in the Proposition 8 case had much more company — with ten amicus briefs urging the writ be granted.  Here again, the decision below is not based in the constitutional text, which is rarely even mentioned.  Rather, the Ninth Circuit’s decision is rooted only in the deeply flawed Romer v. Evans decision, which – if it stands for the proposition for which it was relied on below – should be reconsidered and overturned.

In a line of cases leading to Lawrence v. Texas, the federal courts have assumed the role of protector of homosexuality, even though the Constitution has nothing to say on the topic.  Our amicus brief almost a decade ago explained that Mr. Lawrence’s due process and equal protection arguments were wholly predicated on an ever-changing Constitution which recognizes evolving societal practices and mores, and shreds the notion of a written Constitution of fixed and enduring principles.  Since that brief was written, the words of the Constitution have often continued to mean what lawyers and judges want them to mean, in the rich tradition of Lewis Carroll’s Humpty Dumpty.

The text is again at odds with jurisprudence.  The U.S. Constitution neither protects nor compels marriage by homosexuals.  Indeed, it does not address marriage at all.  Since the U.S. Constitution vests no power in Congress (or the federal courts) on this issue, the Tenth Amendment reserves to the individual states the authority to define marriage, including whether to change the definition of marriage.  Like most other states, the people of California chose not to alter traditional marriage.  It is not the prerogative of the federal courts to second-guess this decision by the people of California.

It was particularly unsettling that the lower federal courts reviewing Proposition 8 would seek to de-legitimize the decision of the people of California by imputing to them base motives.  When the sovereign people exercise their constituent authority, the judiciary has no right to question their motives.  While both Judge Walker (on the district court) and Judge Reinhardt (on the court of appeals) faulted the people for bias, both judges felt that their own motives were above reproach.  As the lower-court decisions appeared to be compromised by the personal interests of these judges, the Supreme Court may choose to review the decisions below as part of its supervisory responsibilities over the lower federal courts.

DOMA and Proposition 8 Considered

There may be some reason for optimism.  In two recent cases, the Court has overlooked flawed jurisprudence and returned to the constitutional text with respect to both the Second Amendment and the Fourth Amendment.  Further, until now, the United States Supreme Court has only twice addressed the question whether marriage can be defined contrary to this law of the Creator.  In Reynolds v. United States, the Court unanimously rejected the claim that the First Amendment’s free exercise clause required civil recognition of polygamy.  In Loving v. Virginia, the Court rejected a state law prohibiting interracial marriage.  Both decisions kept American law in conformity with the Biblical definition of marriage, as an institution ordained and established by God, not one defined by the discretion of civil authorities.

The question of the definition of marriage is one of great historic importance because it is central to the concept of the family — the basic spiritual, social, and economic building block of society.  Until the opening years of the twenty-first century, there has been no doubt that the definition of marriage in America was dictated by the laws of nature and of nature’s God, outside the discretion of any lawmaker or judge.  Thus, the laws defining marriage in America have always conformed to the Biblical definition of a union of one male and one female as described in Genesis chapter 2 and affirmed in Matthew chapter 19.  If the family is not one man and one woman and such children as they may have, marriage could eventually be reduced to anything that the mind of man might devise seeking to obtain societal sanction for personal preferences and behaviors.

In both of the pending attacks on DOMA and California’s Proposition 8, the Court is being urged to employ its power of judicial review not only to reject this fixed rule of what constitutes a marriage, but to assume that it has the discretion to overturn our Creator’s definition of marriage — a usurpation of, shall we say, Biblical proportions.

Posted in Featured, Same-Sex Marriage

Recommended Citation: Bill Olson, Online same-sex marriage symposium: Working to block the ongoing atextual judicial assault on Biblical marriage, SCOTUSblog (Sep. 19, 2012, 11:49 AM), http://www.scotusblog.com/2012/09/online-same-sex-marriage-symposium-working-to-block-the-ongoing-atextual-judicial-assault-on-biblical-marriage/