NOM BLOG

Category Archives: DOMA

"Just as Justice Scalia predicted..."

From Sunday, a piece by Robert Barnes at The Washington Post's Politics page is worth noting.

Barnes explains how "Justice Anthony M. Kennedy’s DOMA decision practically provided a blueprint for how [recent legal challenged to state marriage laws] might be successful," and he observes that Justice Antonin Scalia predicted this fact with stunning accuracy:

Justice ScaliaWhen the court last June struck down the federal Defense of Marriage Act [sic] and said the federal government must recognize same-sex marriages performed in those states where it was legal, Scalia sounded a loud warning.

[...]

Scalia’s words have been highlighted in the two recent decisions about same-sex marriage that will return the issue to the Supreme Court.

Barnes himself seems a more intelligent reader of Scalia's remarkable dissent in the Windsor case than the judges in the recent Utah and Ohio cases. While these judges actually cite Scalia and claim that they are simply "applying" the DOMA decision at the state level, Barnes points out that the full logic of Scalia's written opinion from June is much more complex and nuanced [emphasis added]:

Of course, Scalia did not say in his Windsor dissent that lower courts must adopt such an interpretation.

“Lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples,” [Scalia] wrote, adding: “Lord, an opinion with such scatter-shot rationales as this one . . . can be distinguished in many ways.”

Still, as Scalia pointed out, Justice Anthony M. Kennedy’s DOMA decision practically provided a blueprint for how such challenges might be successful.

Read the entire article here.

Undoing the Myth of Inevitability

Kellie Fiedorek at the Alliance Defending Freedom has a great piece in American Thinker this morning as to why states’ laws and constitutional amendments defining marriage as one man and one woman are completely constitutional and should not be overturned by the US Supreme Court despite efforts by those who would redefine marriage.  She writes…

Myth of InevitabilityProponents of redefining marriage again have set their sights on the U.S. Supreme Court to force a new definition of marriage on every state in the country -- this time by 2015…
But the problem for those behind this plan is that the state marriage laws they are challenging do not violate the Constitution.  Maintaining the gendered definition of marriage that these states have always known falls squarely into what both the Constitution and U.S. Supreme Court precedent approve…
Some assume that the Supreme Court found a new right to same-sex marriage when it issued the Windsor decision at the end of June, but nothing could be farther from the truth.

Read more here.

This is an important piece that all marriage champions should read and share as we work to win the battle in the court of public opinion.  The redefinition of marriage is not inevitable.

NOM's John Eastman Debates Marriage on PBS News Hour

States have been feeling the ripple effects over these past few months following the Supreme Court's DOMA ruling. NOM Chairman John Eastman was featured on PBS News Hour today to talk about how the DOMA decision is affecting state laws, particularly those states that already have marriage protection amendments in their constitutions.

Same-Sex Couple Married in Canada Files Lawsuit Against State of Kentucky

The Courier Journal reports on a same-sex couple that has filed a lawsuit in Kentucky to have the state recognize their out-of-state union:

Scott Utterback/The Courier-Journal

Scott Utterback/The Courier-Journal

Two Louisville men who were married in Canada in 2004 filed a federal lawsuit Friday challenging the constitutionality of Kentucky laws that don’t recognize same-sex marriages from outside the state.

The lawsuit — filed against Gov. Steve Beshear, Attorney General Jack Conway and Jefferson County Clerk Bobbie Holsclaw — does not seek to legalize gay marriages within Kentucky but seeks a permanent injunction requiring that same-sex marriages performed outside the state be recognized here.

“It’s sad to see these people keep pushing this agenda because the state has spoken on this issue,” said [Rep. Stan Lee, R-Lexington] ... “If we live in a Christian nation, then we need to stand by the moral absolutes,” including, he said, that marriage is determined by God to be between one man and one woman.

Bourke made news after he was ousted as a Boy Scout leader in 2012 after announcing that he was gay. The Boy Scouts do not allow gay scout leaders but recently changed its policies to allow openly gay boys to participate.

AUDIO: PFI's Michael Geer on State of Marriage in Pennsylvania

Pennsylvania Family Institute President Michael Geer appeared on WHYY Public Radio earlier this week to discuss PA Attorney General Kathleen Kane's decision not to uphold state marriage law because she personally doesn't support it. Listen to the full audio below:

Airman Punished for Objecting to Gay Marriage in Military Chapel

Todd Starnes of FoxNews Radio:

A 27-year veteran of the Utah Air National Guard said he was reprimanded after he wrote an email objecting to a gay wedding in the West Point chapel and was later told to prepare for retirement because his personal beliefs about homosexuality were not compatible with the military’s policies.

78518504“The military is trying to make examples of people who have religious beliefs that homosexual conduct in the military is wrong,” said John Wells, an attorney representing TSgt. Layne Wilson. “The end game is to force conservative Christians out of the military.”

Last December Wilson wrote a letter to a person believed to be a chaplain at West Point. He stated his displeasure at news of a same-sex ceremony held in the Cadet Chapel.

“This is wrong on so many levels,” Wilson wrote. “If they wanted to get married in a hotel that is one thing. Our base chapels are a place of worship and this is a mockery to God and our military core values. I have proudly served 27 years and this is a slap in the face to us who have put our lives on the line for this country. I hope sir that you will take appropriate action so this does not happen again.”

Instead of responding to the private email, the Commandant of Cadets notified the Utah Air National Guard – leading to an accusation that he had brought disgrace and discredit upon the Air National Guard and his conduct was inconsistent with the United States Air Force.

Blaze TV Video: Prof. Robert George Discusses SCOTUS and Marriage

Princeton Professor Robert George was on the Glenn Beck Program last week talking about the Supreme Court's decisions on marriage:

Davenport: Is Gay Marriage The Product Of Judicial Activism?

David Davenport, a fellow at the Hoover Institution, Stanford University's policy think tank, for Forbes:

Judicial Activism"...What is judicial activism? There are lots of opinions on that, but none is definitive. Apparently the origin of the term came not in a legal opinion at all, but in a 1947 Fortunemagazine article by historian Arthur Schlesinger in which he described the sitting U.S. Supreme Court as having 4 judicial activists, 3 judges who practiced “self-restraint,” and 2 in the middle. The distinction, Schlesinger argued, was based on their legal worldview, with the activists finding the law more malleable and subject to interpretation, whereas those engaged in self-restraint felt that legal terms had real meaning and it was not their place to provide a lot of interpretation.

... Since then, there have existed many understandings of judicial activism. Perhaps the most basic is when a court usurps the role of one of the other branches of government and takes up the work of the legislature or executive. Indeed, Justice William Rehnquist inRoe v. Wade found the majority of the Court engaged in judicial activism or “judicial legislation.” Another variation is when a judge is results-oriented, wanting to reach a particular conclusion and searching far and wide to find some strained legal interpretation to support it. Black’s LawDictionary says it is a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors to guide their decisions.” I would submit that when a Court becomes an engine of change, rather than a brake on the illegal actions of another branch, it is engaging in judicial activism.

Under virtually all of these definitions, it is fair to conclude that there was judicial activism, or at least what New Jersey Governor Chris Christie called “judicial supremacy,” in both of the same sex marriage cases. "

Anderson: What Three Dissents Signal for Marriage's Future

Good weekend reading from Ryan Anderson:

"Not only was the Supreme Court’s ruling on the Defense of Marriage Act baseless and just plain wrong, you won’t learn much from reading Justice Anthony Kennedy’s majority opinion. Except that he thinks only bigotry can explain support for marriage as it was until the year 2000—a male-female union.

You can learn something, however, from reading the three dissenting opinions closely. The conservative justices’ dissents are like flares signaling the path that marriage proponents must take from here.

... The most serious looming challenge is that the Supreme Court will rule in an overreaching way again to remove the authority to make marriage policy from the American people and our elected representatives—if it thinks it can get away with it.

The Court will be less likely to usurp the authority of citizens if it is clear that citizens are engaged in this democratic debate and care about the future of marriage." (Red State)

Holloway: Abraham Lincoln, the Supreme Court, and the Defense of Marriage Act

Today on Public Discourse, Carson Holloway argues that it's only because our politicians have failed to follow Lincoln's example for so long that judicial activism of the sort we saw last week is possible:

139668363Just as Lincoln rejected the Supreme Court's reasoning in the Dred Scott decision, so too conservative leaders need to reject the Court's faulty reasoning about DOMA. Anti-democratic judicial activism has become habitual only because our elected leaders have declined to respond to it with Lincoln's clarity and firmness.

In United States v. Windsor, the conservative movement suffered a serious (although not decisive) defeat in the war to preserve marriage. If we are to learn from this defeat, we need (if I may stick with the military metaphor) an "after action report." That is, conservatives need to ask whether they could have done something different that might have resulted in a different outcome. Although the left has earnestly sought the Court's decision and the right has resisted it, the right still must, to put it bluntly, ponder whether it shares the blame for this debacle.

Video: NOM's Appearances on the Sunday Shows

Prof. John Eastman, Chairman of NOM and Brian Brown, President of NOM were busy this weekend touring the Sunday shows and charting out the future of the marriage movement:

NBC: Nightly News with Lester Holt - John Eastman:

Visit NBCNews.com for breaking news, world news, and news about the economy

CNN: State of the Union with Candy Crowly - John Eastman:

ABC: This Week with George Stephanopoulos  - Brian Brown:

Despite this week's rulings, which declared part of the Defense of Marriage Act unconstitutional and dismissed an appeal made by supporters of Proposition 8 banning same-sex marriage in California, Brown downplayed the victories claimed by gay marriage supporters, saying that the Court did not establish a constitutional right to same-sex marriage in Hollingsworth v. Perry , the case that considered the California ban passed in 2008.

"The court said, well, the proponents don't have standing. It did not say that there was a constitutional right to redefine marriage," Brown said on "This Week" Sunday.

President of the Human Rights Campaign Chad Griffin also joined "This Week" and said he's prepared to continue to "fight this battle on all fronts," through referenda, state legislation and federal court cases to expand same-sex marriage rights further.

Brown said the precedent set in California, where state officials refused to defend Proposition 8 - a law passed by popular referendum - is "horrific for our republic."

"If the governor and attorney general don't to want defend that law, you've just gutted the initiative and referendum process. This is not an American value," Brown said.

Brown called Justice Anthony Kennedy's majority decision in the DOMA case an "absolute travesty" and "incoherent."

He added that Justice Kennedy "says something that is patently untrue," that a person who believes "this truth, that marriage is the union of a man and a woman is somehow motivated by animus and discrimination."

Such an assumption, Brown said, "leads to discrimination against those of us who know that there's something unique and special about husbands and wives, mothers and fathers coming together in marriage."

"There will be a lot of attempts to use this decision to redefine marriage in other states. And we will stand for the truth wherever it is," Brown said.

Fox News: America’s News Headquarters with Shannon Bream – Brian Brown:
[Link forthcoming.]

Ed Whelan on the Lawless Project of SSM

Legal scholar Ed Whalen in NRO's Bench Memos:

Who has better displayed fidelity to the ideals of our constitutional republic, the supporters of traditional marriage (formerly known simply as marriage) or the proponents of same-sex marriage? Consider the histories of DOMA and Prop 8.

...The battle for marriage in California displays a similar pattern. In 2000, California voters adopt Proposition 22 to affirm that marriage in California remains what it has always been—the union of a man and a woman. In May 2008, the state supreme court, in a novel opinion and by a 4-3 vote, strikes down Proposition 22 as supposedly violative of the state constitution. Marriage supporters respond with Prop 8, which the voters of California adopt in November 2008. Intense and vicious bullying of supporters of Prop 8 ensues.

Proponents of same-sex marriage then run to their favorite federal courthouse to challenge Prop 8 on federal constitutional grounds. They draw as the judge in the case Vaughn Walker, who proceeds to engage in what is probably the most egregious course of misconduct ever by a federal district judge (and who discloses only after his retirement from the bench that he is in a long-term same-sex relationship and thus was ruling on his own right to marry his same-sex partner).

...As reprehensible is the unprecedented refusal of California officials to defend Prop 8—a refusal that ultimately leads five members of the Supreme Court (including Kagan, the decisive vote once again) to rule that the Court has no jurisdiction over the case.

Now I of course understand that those who somehow believe that there is a never-before-recognized constitutional right to same-sex marriage will perceive supporters of marriage to be the unjust aggressors in these episodes. But I would hope that even they would acknowledge that supporters of marriage have pursued their objectives democratically and peacefully and, adhering to established constitutional principles (rather than imagined new ones), have ample cause to feel terribly cheated.

Peters Interviewed by HuffPo on the New Momentum in the Pro-Marriage Fight

Our Communications Director Thomas Peters was interviewed yesterday by Lila Shaprio of The Huffington Post about what the Supreme Court's decisions mean positively for the pro-marriage movement:

"...[Peters] wasn't expecting the huge influx of supportive calls and donations that came in to his organization, the group leading the fight throughout the United States against same-sex marriage legalization efforts.

"A not-insignificant part of our base expected us to lose it all at the Supreme Court," Peters told The Huffington Post on Thursday. "I think this does put new momentum into our fight."

On Wednesday, the court, in two separate cases, ruled that the federal government must recognize gay couples married in states where it is legal and returned same-sex marriages to California. But the justices stopped short of declaring it a constitutional right for all gay couples to marry.

..."A lot of our people are ecstatic. We've been in a waiting game since the court decided to take Proposition 8," Peters said of California's voter-approved ban on same-sex marriage that the court's ruling nullified. "There was always a question about whether the court would just change it all unilaterally. Now, these state-level rights really matter."

While efforts are already in the works to reintroduce a Federal Marriage Amendment, a measure NOM supports that would define marriage as between one man and one woman, Peters feels that the state fights over gay marriage are at the top of his organization's agenda."

Brian Brown Responds to Supreme Court Rulings in the Washington Post

This op-ed by our President Brian Brown appeared online and will appear in the print edition of The Washington Post:

Brian BrownIt was outrageous for the Supreme Court to invalidate Section 3 of the Defense of Marriage Act and allow the potential invalidation of California’s Proposition 8, a law passed with the support of more than 7 million voters. Although Wednesday was a sad day for democracy and for marriage, this is not the end of the battle.

The vast majority of states recognize marriage solely as the union of one man and one woman. Only 13 states and the District of Columbia recognize same-sex “marriage,” and nothing the Supreme Court just did changes that fact. If anything, the court’s opinion in United States v. Windsor, the DOMA case, shows that the federal government must respect the decision of states to define marriage as they choose.

The National Organization for Marriage intends to vigorously urge Congress to safeguard the remaining portion of DOMA, which protects the right of states to refuse to recognize same-sex “marriages” performed elsewhere.

Continue reading here.

Matt Lewis: Supreme Court Rulings Use Same Arguments as Polygamy

Matthew Lewis in the Daily Caller asks, with the Supreme Court's ruling on DOMA, why doesn't the government have an obligation to honor polygamous 'marriages' as well?

Polygamy

"...The arguments [for gay marriage and polygamy] are essentially the same. For example, Sen. Al Franken recently issued a statement saying, “Our country is starting to understand that it’s not about what a family looks like: it’s about their love and commitment to one
another.” Polygamists couldn’t agree more.

I mean, who are we to say that two or three or even four consenting adults — who want to make a lifelong commitment to love each other — shouldn’t be allowed to do so?

What’s magical about the number two?

In fact, you could argue that there is an even better argument for polygamy than for same sex marriage. For one thing, there’s a long tradition (just look at the heroes of the Old Testament.) It’s also intimately tied to religious practice, which means that by prohibiting polygamy, we might also be undermining the “free exercise thereof.”

Why should we impose our values on others?..."