No US Constitution right to redefine marriage

"It's time for the Supreme Court to correct some wrongs!"

That's what I told Fox News in the wake of the Supreme Court's surprise decision last Friday to take up the Prop 8 case, as well as the DOMA cases:

There is no constitutional right to redefine marriage. Our Founding Fathers didn't see it that way, and the last Supreme Court decision, Baker v. Nelson, the United States Supreme Court said there was no federal question here; so this is essentially making the law up as you go along, it is reading into the Constitution something that is not there.

And I reiterated this on Tuesday, as I told Newsmax.TV, "We are ecstatic that the court granted cert and took the case. Folks may not remember this, but the lawyers for those that wanted to overturn Proposition 8...actually argued and asked the Supreme Court to not take the case. [...] There is no constitutional right to redefine marriage and the Court's going to find that."

Predictions of a Marriage Victory in Court

NOM's Chairman of the Board, the distinguished law professor and litigator Prof. John Eastman, just published a column in USA Today that says it all: "Federal Government Can Define Marriage, Too."

"The most likely outcome," Prof. Eastman boldly predicts, "is the court will uphold the constitutionality of Proposition 8 and DOMA."

On Proposition 8, Prof. Eastman goes on to say that the gamble of "the Hollywood funders of the Perry lawsuit...will go bust when the court rules that more than 7 million Californians were perfectly within their rights to define marriage in the traditional way, just as citizens in virtually every nation since the dawn of time have done."

As for DOMA? Eastman concludes: "If states have the right to define marriage, doesn't the federal government have that same right? It's the constitutional duty of our elected officials to decide what burden taxpayers bear in dealing with same-sex couples."

Professor Jason Mazzone of Brooklyn Law School, writing at the Balkinization blog, agrees that making a federal case of DOMA may backfire: "Beware of liberals making federalism arguments," he wrote on Sunday. "It is understandable why New York, Massachusetts and other states where same-sex marriage is lawful would want all of their married couples to receive the same federal benefits. But state power to define marriage is not undermined just because the federal government follows a standard, for federal purposes, that does not track that of particular states."

You and I and the millions of other Americans who gave our time, treasure, and voices—who worked hard entering the arena of democracy, trusting our fellow citizen's judgment—we have rights too...rights that the 9th Circuit took away from us when it overturned Prop 8.

Look, we lost four heartbreaking, very close fights on marriage this November at the ballot box.

But notice: we are not in court seeking to overturn theirdemocratic victories with the swipe of a judge's pen!

Here's the irony I suspect will be hard for the Supreme Court to miss: The same folks arguing on "conservative" and "federalist" grounds for overturning DOMA (i.e., that the federal government is obligated to respect states' rights to define marriage differently) will also be urging the Court to impose a single gay marriage standard on all 50 states!

It's going to be hard for the Justices to miss that...

We're Not the Only Ones Anticipating Victory For Our Side

Trust me: gay marriage advocates are worried—very worried—that they are about to lose.

I've been reading the responses carefully. Here's just a sampling of pro-gay marriage worries:

• E.J Graff wrote just two weeks ago, "If the court does take up Perry, be afraid, be very afraid. Almost no one believes the Supreme Court is ready to get out ahead of American opinion on the question at Perry's heart: Do same-sex couples have a fundamental right to marry under the U.S. Constitution?"
• Linda Hirschman, author of the triumphalist book on gay rights "Victory," worries at The New Republic that the Olson and Boies strategy "may backfire":

  The closest case to the Boies-Olson litigation in the women's movement—Roe v. Wade—triggered a four decade backlash. Once before the gay movement overplayed its hand ever so slightly with the Court and got a terrible decision upholding the criminal sodomy laws. Gays almost won the first sodomy case; the decision in Bowers v. Hardwick was only 5-4, so it was hardly a foolhardy risk. And yet, it does make you shiver."

• Adam Serwer at Mother Jones called the risks of loss "very great," saying Roberts and Kennedy (the two swing justices) are likely to decide that "finding a right of same-sex couples to be free of discrimination amounts to 'forcing' same-sex marriage on everyone else."
• Billy Hallowell with the Associated Press penned a story this Wednesday confessing, "gay marriage supporters see 41 reasons to fret over the Supreme Court's decision to take up the case of California's ban on same-sex unions." [Sic.—there is no ban, but never mind.] "While nine states allow same-sex partners to marry, or will soon, 41 states do not. Of those, 30 have written gay marriage bans into their state constitutions." Hallowell quoted Mary Bonauto, Director of the Civil Rights Project at Gay and Lesbian Advocates and Defenders, admitting, "'I can't help but be concerned.'"
• Ruth Marcus, on December 11 at The Washington Post, called the Court's move "unsettling, even scary, because it's far easier to count five votes for 'no' than for 'yes.'" "Waiting is hard," Marcus writes, "Losing is worse."
• "I'm not thrilled," Columbia Law Prof. Katherine Franke told a HuffPo reporter. "I would have preferred they took the Windsor [DOMA] case alone."
• Adam Nagourney's New York Times headline declared "Worry Tempers Joy Over Gay Marriage's Moment in Court." Nagourney quotes our old buddy Lt. Gov. Gavin Newsom of California saying "'There is no question that it is a risk. If they nationalize it and reject it, that's going to take decades to come back to the court.'" "'I'm very nervous and unnerved'" chimes in Don Romesburg, an associate professor of women and gender studies at Sonoma State University (who married his same-sex partner in California).
• And finally, from Adam Winkler, a law professor at UCLA who writes on HuffPo's "Gay Voices" page: "The California case, brought by Supreme Court superstars Ted Olson and David Boies, was designed from the beginning to obtain a bold, revolutionary ruling by the justices declaring gay marriage a constitutional right. [...] It's more likely that Olson and Boies' blockbuster will end with a whimper [emphasis added]."

Not with a pro-gay marriage bang, in other words, but a lot of whimpering.

Publicly, the so-called 'superlawyer" Ted Olson is dismissive of all these worries: "We have never agreed with those concerns," he proclaims.

Uh, hey Ted...then why, exactly, were you in court arguing that the Supremes should not take the Prop 8 case and just let the 9th Circuit's decision stand?

Look, I'll be the first to admit: Nobody knows what the Court will do. Depending on Justice Kennedy's vote is a dicey proposition, I grant you. But we do know that if the Court had refused to take the case, the 9th Circuit ruling—taking away your vote and mine for Prop 8—this ruling would have become the new law of the land.

Now the ball is in the hands of the Justices to do justice to marriage—and to democracy.

PRAY—and pass the intellectual ammunition!

New Pro-Marriage Book Hot Off the Presses

NOM founding Chairman of the Board, Princeton Prof. Robert George has just published a new book, along with Sherif Girgis and Ryan Anderson. It's called What is Marriage? Man and Woman: A Defense.

I'm reading it right now, and let me tell you—it's a rare combination: short, easy to understand, and hands-down, off-the-charts brilliant!

Professor George and his colleagues compare and contrast the "conjugal" nature of marriage with the radical revisionist view, and show how weak the arguments for gay marriage actually are.

And the book contains a whole chapter answering, in simple easy to understand language, "What's the harm?"

An unsound law of marriage will breed mistaken views--not just of marriage but of parenting, common moral and religious beliefs even friendship.

Redefining marriage would change its meaning for everyone. Legally wedded opposite-sex couples would increasingly be defined by what they had in common with same-sex relationships. . . Marriage itself, the human good, would be harder to achieve. For you can realize marriage only by choosing it; and you can choose it only if you have at least a rough, intuitive idea of what it really is.

I hope you get a chance to read this great work.

The case for marriage is timeless. We aren't going to give up defending foundational truths in court and out.

Justice For Julea Ward

Let me end with the encouraging news about a stunning victory in court:

Julea Ward, you may recall, is the Counseling graduate student who was kicked out of Eastern Michigan University after she politely asked the Counseling Department to refer a gay couple struggling with relationship issues to a more appropriate counselor, given her religious beliefs. Such referrals are common practice in counseling for a variety of reasons.

The University responded by requiring Ms. Ward to go to a re-education camp or be kicked out of school! When Julea refused to have her religious beliefs remade, the University—a public school—kicked her out.

A lower court sided with EMU at first; but when the case got to the 6th Circuit US Court of Appeals last January, the University got a whupping:

In a strongly worded opinion in Ward v. Wilbanks, the 6th Circuit sent the case back for trial, saying, "a reasonable jury could conclude that Ward's professors ejected her from the counseling program because of hostility toward her speech and faith. [...] A university cannot compel a student to alter or violate her belief systems based on a phantom policy as the price for obtaining a degree."

"Tolerance," the 6th Circuit declared, "is a two-way street. Otherwise, the rule mandates orthodoxy, not anti-discrimination."

Words to relish. A victory to cherish.

Congratulations to Ms. Ward, to ADF Senior Legal Counsel Jeremy Tedesco who argued before the court in October of last year, and to all our friends at ADF for a great, great victory.

As a great man once said, "The arc of history is long, but it bends towards justice."

Stay strong.

Faithfully,

Brian S. Brown President National Organization for Marriage