NOM BLOG

Memo to Supreme Court: State Marriage Laws Are Constitutional

 

“There is nothing in the U.S. Constitution that requires all 50 states to redefine marriage.”

News stories report about one or more states’ same-sex marriage ban being declared “unconstitutional,” and the requirement for all states to redefine marriage as being simply a union between any two people, regardless of gender. There is one fact, however, that has been overlooked, ignored, and suppressed by same-sex marriage advocates: nothing in the US Constitution requires states to redefine marriage.

No one should be more aware of this fact than our Supreme Court justices. Tragically, some have already indicated that they will put their own personal preferences about same-sex marriage above their duty to uphold The Constitution.

57565279Like many of our American forefathers, there are those who refuse to remain silent while our rights - those that are actually in the Constitution - are trampled. Gene Schaerr and Ryan Anderson have written a memo to the Supreme Court, outlining cold hard facts, historical basis, and logical conclusions for why the definition of marriage as one man and one woman is in fact constitutional, and must be protected.

The overarching question before the Supreme Court in the four cases that were consolidated before the Sixth Circuit and for purposes of review by the Supreme Court—Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear—is not whether an exclusively male–female marriage policy is the best, but only whether it is allowed by the U.S. Constitution.[4] In other words, the question is not whether government-recognized same-sex marriage is good or bad policy, but only whether it is required by the U.S. Constitution.

Schaerr and Anderson also explain why the existence of “the constitutional right to same-sex marriage” will be impossible to prove:

177319106The only way someone could succeed in such an argument is to adopt a view of marriage that sees it as an essentially genderless institution based only on the emotional needs of adults and then declare that the U.S. Constitution requires that the states (re)define marriage in such a way. Equal protection alone is not enough. To strike down marriage laws, the Court would need to say that the vision of marriage that our law has long applied equally is just wrong: that the Constitution requires a different vision entirely.

The memo goes on to explain where in the constitution marriage between one man and woman is protected, as well as rational basis for why it should be protected:

From a policy perspective, marriage is about attaching a man and a woman to each other as husband and wife to be father and mother to any children their sexual union may produce. When a baby is born, there is always a mother nearby: That is a fact of biology. The policy question is whether a father will be close by and, if so, for how long. Marriage, rightly understood, increases the odds that a man will be committed to both the children that he helps to create and to the woman with whom he does so.[44] The man–woman definition of marriage reinforces the idea—the social norm—that a man should be so committed.

The man–woman definition, moreover, is based on the anthropological truth that men and women are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father.

In short, fathers matter, and marriage helps to connect fathers to mothers and children. But you do not have to think this marriage policy is ideal to think it constitutionally permissible. Unless gays and lesbians are a suspect class, for an equal protection challenge to succeed, this simple analysis of the social function of marriage would have to be proved not just misguided, but positively irrational. Universal human experience, however, confirms the rationality of that policy.

87686941Marriage equality already exists in America: everyone has the freedom to marry someone of the opposite sex, or choose not to be married. As for same-sex couples, they too can choose to either marry or not marry someone of the opposite sex. Regardless of what a person might “prefer,” marriage cannot take place unless it is between a man and a woman. “Marriage” between same-sex individuals is biologically impossible, anthropologically unsustainable, and constitutionally unenforceable.

Schaerr and Anderson’s full memo can be read here. Time spent reading this memo is time invested in understanding the true argument around the constitutionality of marriage, as well as understanding just how blatantly states’ and the individual constitutional rights are being trampled. Our founding fathers were not tolerant when their innate human rights were denied, and we, the American people, will not tolerate our constitutional rights being denied.