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Commentary on marriage grants: Opportunity for the Court to right some wrongs

The blog is pleased to have commentary and analysis of today’s grants in the marriage cases from supporters of both sides.  This post has reactions from William Duncan, the director of the Marriage Law Foundation. We will  be posting other reactions as soon as we receive them

Now that the Supreme Court has agreed to hear the appeals of one of the decisions striking down DOMA and the Proposition 8 case, the Court’s focus should turn to correcting the serious flaws in the lower court decisions it will be reviewing and preventing future judicial adventurism on the definition of marriage.

The decisions the Court will be reviewing have embraced something like a “substantive equal protection” doctrine.

The two circuit decisions have embraced highly novel theories for their conclusion that retaining the understanding of marriage as the union of a husband and wife is constitutionally suspect. In the Windsor (DOMA) case, the Second Circuit’s theory was that sexual orientation classifications should be treated as quasi-suspect on a par with classifications based on a person’s sex. This is a break with the Supreme Court’s past approach and with the conclusions of all the other circuits to have addressed the question.

In the Perry (Proposition 8) case, the Ninth Circuit panel’s holding was based on the theory that improper animus can be inferred from the fact that Proposition 8 was approved after the state supreme court refused to stay the effect of its decision mandating marriage redefinition until the people of California could respond to that decision.

The Supreme Court now has an opportunity to wave the lower courts off this program of social engineering through a results-oriented jurisprudence.

The Court has appropriately cabined the more expansive applications of substantive due process so that courts may not create “rights” unknown to text, history and tradition. The concerns prompting this curb are also present in an attempt to impose a result with no mooring in Constitutional provisions, practice, or precedent through the Equal Protection Clause. Such a program ends an ongoing debate with complex and sensitive implications for family policy, religious freedom, federalism, etc.

These considerations will get short shrift in broad judicial pronouncements. It may be easy for a court to announce that marriage has to be redefined but such a decision cannot deal with the crucial implications of such an announcement. How will such a mandate affect existing rules for determining legal parentage? How should a state of the national government balance claims of those who cannot, in good conscience, accept and act upon the idea that there are no differences between the union of a husband and wife and the union of any two adults? The people of the United States can address these questions in legislation but courts are limited to an up-or-down vote on constitutionality.

The justification for a novel application of equal protection has been that normal procedures for lawmaking are hopelessly inadequate for protecting certain identifiable groups. This is manifestly not the case in the marriage context. There is no reason, far from it, to believe the people of the states cannot, directly or through their representatives, appropriately respond to claims that marriage ought to be redefined. The claim that advocates of redefining marriage are politically powerless does not ring true.

As a recent District Court decision — Sevcik v. Sandoval — has noted: “The States are currently in the midst of an intense democratic debate about the novel concept of same-sex marriage, and homosexuals have meaningful political power to protect their interests. At the state level, homosexuals recently prevailed during the 2012 general elections on same-sex marriage ballot measures in the States of Maine, Maryland, and Washington, and they prevailed against a fourth ballot measure that would have prohibited same sex marriage under the Minnesota Constitution. It simply cannot be seriously maintained, in light of these and other recent democratic victories, that homosexuals do not have the ability to protect themselves from discrimination through democratic processes such that extraordinary protection from majoritarian processes is appropriate.”

No constitutional principle requires the rule of law to be displaced in order to impose a substantive policy result on the states or the United States. Congress has power to define terms used in federal law. The people of California (and of every state) have the power to clarify the meaning of the laws and constitutions of which they are the ultimate authors. The answer to the issue the Court faces in these cases is really that simple. That the exercise of their authority has resulted in a decision unpalatable to some is not a reason to manufacture new legal doctrines to get a different result.

One aspect of the Court’s orders that will receive hopeful attention from those who (justifiably) fear that the novel decisions of the courts below could doom the effort to secure judicially mandated marriage redefinition, are the questions of whether the Bipartisan Legal Advisory Group of the House of Representatives and whether the official proponents of Proposition 8 have standing to appeal to the Court.

Since the California Supreme Court has already made clear that the official proponents would have standing to defend Proposition 8 under state law, that question should not present a major obstacle to the Court. It is also not clear that the original district courts in these cases would have had jurisdiction if there were no actual controversy between the parties – which would seem to be the case if BLAG and the proponents could not participate in the cases.

Even more fundamentally, to allow the lower court decisions in these cases to stand because the public officials charged with defending the law refused to do so would reward feckless and irresponsible behavior. It would give executive branch officials the ability to decide constitutional cases through inaction—a terrible precedent.

The bottom line is that there is a lot at stake in the Court’s responses to these petitions. The questions of whether the people of the United States may make the laws that govern them; whether those who believe marriage is the union of a husband and wife can fairly be characterized as bigots; whether government lawyers will have the final say on the meaning of the Constitution; and whether the Constitution has a fixed meaning are all present in these appeals; along with other no less weighty are implicated in these cases.

It is good news that the Court has agreed to hear these appeals. It allows some significant mistakes to be corrected and that is in the best interests of all. The bottom line is that if the Court squarely addresses the actual issue—whether the Constitution can fairly be read to mandate marriage redefinition—the resolution should be simple.

Recommended Citation: William Duncan, Commentary on marriage grants: Opportunity for the Court to right some wrongs, SCOTUSblog (Dec. 7, 2012, 5:46 PM),