NOM BLOG

"Is Traditional Marriage Unconstitutional?" -- Professor of Law Responds

 

George W. Dent, Professor of Law, Case Western Reserve University Law School writes at-length in the Federalist Society's Engage publication on the legal status of Prop 8 and concludes:

The Constitution confers no right to legal validation of same-sex marriage. As Judge Richard Posner has said, “If there is such a right, it will have to be manufactured by the justices out of whole cloth.” For the Supreme Court to do so would gravely damage its legitimacy and invite efforts to change the composition of the Court. However justified the public anger at the obliteration of traditional marriage, such moves would create a dangerous precedent. It is hoped that the Court will not provoke such action.

27 Comments

  1. Josh
    Posted December 26, 2011 at 8:34 am | Permalink

    Does the Constitution confer a right to interracial marriage or any marriage for that matter? Does it confer a right for corporations to spend unlimited amounts of money in elections? The Court has repeatedly manufactured rights out of whole whole and it's never been an issue before.

  2. davide
    Posted December 26, 2011 at 10:36 am | Permalink

    everyone knows same-sex 'marrige' is a owy-moron and is a made up right. I have yet heard a homosexual activist claim this 'right' comes from God.

  3. Teri Simpkins
    Posted December 26, 2011 at 11:36 am | Permalink

    The only ones claiming marriage is a right from God is those who claim to be religious. No one is asking for religions to marry those they won't. It's civil marriage rights that are being asked for. But then, everyone also knows that religious rights are an oxymoron, too.

  4. Chris From CO
    Posted December 26, 2011 at 11:56 am | Permalink

    "Is Traditional Marriage Unconstitutional?" The questions implies that if we agree to another group of people to marry then it would void one man one women marriage. It's FALSE, gay and lesbians do not want traditional marriages to go away. We support your rights to marry, as well as ours. My parents have been together for 33 years. I would love to be the one planning their 50th anniversary juast like I did with my grandparents, and one day I will enjoy my 50th anniversary with my partner while our 3 kids plan it.

    Tradition is beautiful and sacred, and so is untraditional. There are a lot of opposition in your group towards my family and many friends of mine. But I won't hold a grudge against you I will just pray for you. Hatered in my eyes is a curse in itself. I wish the best for all of you and your families. One day I hope you can wish the best for my family.

  5. Louis E.
    Posted December 26, 2011 at 12:24 pm | Permalink

    Chris,if we deny that uniting males to females is the essential defining characteristic and purpose of marriage,we abolish all people's right to participate in a civil institution with that characteristic and purpose.As long as my home state allows same-sex marriage I will never marry here,and as I am not religious a religious ceremony is not an option for me.

    And the best for you involves understanding that same-sex sexual relationships are wrong and should never exist,while there is a public interest in guaranteeing a superior legal status to opposite-sex relationships.With that proper definition,I do wish you the best.

  6. davide
    Posted December 26, 2011 at 12:29 pm | Permalink

    chris how can we wish the best for your family when you and your partner denies the children in your care the basic and fundamental human right of kids being raised by a mother and father? I do not know the circumstances of your family. But to intentionally deny kids a mother and father is incredibly cruel.

  7. Barb Chamberlan
    Posted December 26, 2011 at 1:05 pm | Permalink

    There's a serious disconnect in the minds of same sex couples who have children. They'll go to extremes to make sure the child is biologically connected to one of the partners. This is very important they will say. Then, in the same breath, they'll turn around and deny that there's any importance to the child knowing or being raised by the other biological parent.

    It's a real mental juggling act, one that would make a sane person's brain explode.

  8. Posted December 26, 2011 at 1:17 pm | Permalink

    The Court has repeatedly manufactured rights out of whole whole and it's never been an issue before.

    It is always been an issue, such as when they invented a right to an abortion.

  9. Zack
    Posted December 26, 2011 at 2:22 pm | Permalink

    @Josh

    You've never heard of Roe V Wade

  10. Daughter of Eve
    Posted December 26, 2011 at 2:52 pm | Permalink

    Before there was a Constitution to protect God-given rights (not to create or invent them), there was man+woman=marriage.

  11. Spunky
    Posted December 26, 2011 at 3:56 pm | Permalink

    @ davide

    everyone knows same-sex 'marrige' is a owy-moron

    This is my favorite typo ever.

    Anyway, no one has responded to Josh's point (no, Zack's random retort doesn't count).

  12. Son of Adam
    Posted December 26, 2011 at 4:16 pm | Permalink

    The U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas’s law in Lawrence.

    I should remind you that the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas’s law in Lawrence. Even Ruth Bader Ginsburg, one of the most liberal members of the court, has indicated that it is counterproductive for the Court to go "too far too fast." Although she tirelessly defends abortion rights, she has still said that "[t]he court bit off more than it could chew" when it decided Roe v. Wade.

    It is highly unlikely that the Supreme Court will overrule 30 state constitutional amendments defining marriage as being between one man and one woman and 31 out of 31 referendums and force gay marriage on everyone. Any lawyers bringing such a case before the Court will need favorable votes from five of the nine justices. Yet as Constitutional law scholar Andrew Koppelman put it, "When I try to count the votes in favor of same-sex marriage on the Supreme Court, I have trouble getting to one."

  13. Josh
    Posted December 26, 2011 at 6:53 pm | Permalink

    Yes I know the holding in Roe, very well. What I mean by "never an issue" is that this article purports to claim that when/if SCOTUS recognizes and/or manufactures a right to SSM, it will "invite efforts to change the composition of the Court." Why is that Roe, Citizens United or a myriad other landmark yet inventive opinions didn't trigger this type of reaction? Also no one addresses my main point that the Constitution doesn't explicitly confer a right to any marriage, the right for billion dollar conglomerates to spend $$$ in our elections, in fact it doesn't even bestow upon the Court the power to declare void a duly enacted act of Congress.

    I just disagree with this mischaracterizing of the Court's role that should they determine that the exclusion of same-sex couples from the civil institution of marriage is unconstitutional that the Court is now suddenly acting outside of its proper and well established role of "manufacturing rights" aka interpreting the Constitution.

    Also on the topic of the article, it is highly flawed and seems to suggest that the Court cannot possible recognize SSM due to previous holdings. He reads the precedents extremely narrowly and misinforms readers about the level of scrutiny the Court applied. In fact Justice Kennedy himself DECLINED to identify the level and Justice Scalia in his dissent, affirmed that the Court invented a new level of scrutiny in Lawrence. The Ninth Circuit held that the Court used intermediate scrutiny, so his definitive article that declares "rationale basis" was used is incorrect and a misreading of the expansive holdings in both Romer and Lawrence.

  14. Daughter of Eve
    Posted December 26, 2011 at 10:40 pm | Permalink

    In SSM, not all same-sex couples/ same-sex relationships treated like marriage. Where is the hue and cry?

  15. Posted December 27, 2011 at 1:11 am | Permalink

    The Ninth Circuit held that the Court used intermediate scrutiny, so his definitive article that declares "rationale basis" was used is incorrect and a misreading of the expansive holdings in both Romer and Lawrence.

    As did the First Circuit and the Court of Appeals for the Armed Forces. By contrast, the Eleventh Circuit, the Sixth Circuit, the Texas Fifth Circuit and the Washington Supreme Court had interpreted Lawrence to have applied rational basis scrutiny. The Supreme Court so far had refused to grant cert to petitions arising from the First and Eleventh Circuit cases even though they disagreed on a point of law.

    One thing is clear, and it is that Lawrence did not use strict scrutiny.

    As for Romer , it was by no means a ruling that set forth a new interpretative doctrine for equal protection; it's only historical significance is the law it struck down was unprecedented. It had not overruled any prior Supreme Court decision, or even any decision from a federal circuit appellate court or state highest court. Romer assumed, without deciding, that rational basis scrutiny applied and invalidated the law in question. Courts sometimes apply a level of scrutiny without deciding if the level of scrutiny is appropriate if the law can not survive the lowest level of scrutiny in dispute, or can survive the highest level of scrutiny in dispute. See e.g. Beller v. Middendorf , 632 F.2d 788 at 809-810 (1980) (holding that challenged policy survives heightened scrutiny without deciding if heightened scrutiny was warranted)

  16. Ash
    Posted December 27, 2011 at 10:41 am | Permalink

    This was an excellent piece of legal analysis by Dent.

  17. ResistSSA
    Posted December 27, 2011 at 12:10 pm | Permalink

    Ash, I agree. One of my favorite statements in the article:

    "The fundamental right to marry should mean the right to enter into a relationship that falls within the traditional definition of marriage, not to legal recognition of whatever arrangement some person or group of people wants to label marriage."

    Indeed. Rings of that infamous statement by Bill Clinton about the definition of the word "is." We know what marriage is, was, has always been. Attempts to redefine is a tool to achieve dubious objectives.

  18. bman
    Posted December 27, 2011 at 2:02 pm | Permalink

    Ash->This was an excellent piece of legal analysis by Dent.

    The author, George Dent, also has several other interesting articles on the subject.

    The links below take you to the abstract page. To download the article choose "One Click Download" near top left tab.

    Civil Rights for Whom?: Gay Rights versus Religious Freedom

    Straight is Better: Why Law and Society May Legitimately Prefer Heterosexuality


    No Difference?: An Analysis of Same-Sex Parenting

    This next ink goes to a different website but the article is by same author.

    It contains an excellent discussion on the power of norms and the ability of government to affect those norms for good or bad.Traditional Marriage: Still Worth Defending

  19. Ash
    Posted December 27, 2011 at 2:15 pm | Permalink

    I like that one, too, Resist. Here are two other statements I like:

    “However, if traditional marriage is unconstitutionally discriminatory, can any privileged status for marriage be upheld? The defense of traditional marriage is that it promotes responsible bearing and raising of children. If that defense is constitutionally inadequate, what constitutional justification is there for privileging marriage at all?”

    “It is hard to believe that a Supreme Court decision branding the majority of Americans (and, indeed, virtually all human beings who have ever lived) as irrational bigots because they believe there is something special about the ability of a woman and a man to create human life would not diminish public respect for marriage.”

    As far as attempts to redefine marriage, I think at least two of the objectives are rather clear: (1) obtain societal approval of homosexuality; (2) abolish the institution of marriage (hence the last sentence of the first quote). These objectives can be inversed based on the individual fighting for ssm. I’d be willing to say, actually, that there are homosexuals fighting for ssm who are not necessarily interested in achieving objective two.

  20. Daughter of Eve
    Posted December 27, 2011 at 2:26 pm | Permalink

    The fundamental right to marry does not mean the fundamental right to marry whomever we want. Such a distinction is not unconstitutional. Not all loving same-sexed or opposite-sexed relationships qualify as marriages.

  21. Little man
    Posted December 28, 2011 at 5:21 am | Permalink

    Josh: No one is responding to your point, because you don't have one. Plus your subject matter has been common knowledge on this blog over many posts. The Constitution created Congress to add or amend the Constitution. Ponder on that.....

    You can't even spell 'rational basis' review, plus you are incorrect in the basis of review of Lawrence v. Texas. Here, you are the one manufacturing rights, but you are not even a law professor. This is way out of your league, man.

  22. Little man
    Posted December 28, 2011 at 6:07 am | Permalink

    I like this part of the article referenced in this post:

    '...This inconsistency points to a more fundamental problem with the equal protection claim here. All parties in Perry agree that marriage is a privileged status. Plaintiffs do not challenge that status; they simply want same-sex couples to be eligible for it. However, if traditional marriage is unconstitutionally discriminatory, can any privileged status for marriage be upheld? The defense of traditional marriage is that it promotes responsible bearing and raising of children. If that defense is constitutionally inadequate, what constitutional justification is there for privileging marriage at all? Proponents of same-sex marriage do not answer this question.'

    What an amazing mind the well disciplined legal mind is!

  23. Little man
    Posted December 28, 2011 at 6:25 am | Permalink

    As Bertrand Russell said: “But for children, there would be no need for any institution concerned with sex. . . . [I]t is through children alone that sexual relations become of importance to society.”24

    Died in 1970, at almost the age of 100, Russell did not write during the times of the AIDS epidemic. Indeed there's a need for an institution concerned with the spread of AIDS through the sexual act. Man-man penetration is not exactly sex. It's a punishment.

  24. Ash
    Posted December 28, 2011 at 11:40 am | Permalink

    I like that one, too, Resist. I put up some other quotes from the article that I liked, but I guess it was censored. Who knows; it may appear on the page next year ;)

  25. John Noe
    Posted December 28, 2011 at 8:06 pm | Permalink

    Remember noone including heterosexuals has a right to a marriage license and recognition from the state. One of the biggest lies put forth by the opposite side is claiming something as a right when it never was a right to begin with.

    Remember this everybody, the government could if it wanted to stopped recognizing anyone's marriage and dissolved the state benefits that come with it. It would be perfectly constitutional to do so. Why? Because you never had a right to a government license and those 1000+ benefits to begin with.

  26. Ash
    Posted December 30, 2011 at 12:57 pm | Permalink

    Thanks, bman.

  27. Josh
    Posted January 2, 2012 at 3:54 am | Permalink

    While my other reply is pending acceptance by a mod, I wanted to add that the standard of review the Court has thus far employed isn't important and doesn't preclude the Court from ever applying strict scrutiny. In Romer and Lawrence, the laws under review were struck down without the need for a higher standard. Thus we don't know if sexual orientation is considered a suspect class for constitutional analysis at the Supreme Court. We will soon find out.