Dear Marriage Supporter,
A couple of court cases have attracted some interest this week, and they provide an interesting contrast highlighting why we are both concerned about the future of marriage in America, but also optimistic in the long run.
The Ninth Circuit Court of Appeals denied NOM's motion this week to intervene to defend the state's marriage amendment in court.
Because the state Attorney General and Governor both abandoned their sworn duty to defend the law, NOM was left as the sole entity willing to publicly defend the statute on behalf of our members within the state of Oregon. We filed the appeal on behalf of our supporters, who did not wish to be named publicly, fearing reprisal.
There is well-established precedent for this under the Supreme Court's ruling in the case of NAACP v. Alabama allowing membership organizations to pursue the interests of their members when there are substantial hurdles to the members litigating in their own name, such as the real threats of harassment and violence that have been manifested elsewhere in the country around the marriage issue.
Unfortunately, the Ninth Circuit did not agree and denied our motion, saying that we lacked legal standing.
Which raises the question: in America today, who DOES represent the interests of the voters? Elected officials who have sworn oaths of office to do so are refusing to do so when the issue is perceived to run counter to the popular culture. And when that happens, what can the voters do?
It's a serious crisis begun by the Supreme Court's decision last summer that the defendants of Proposition 8 didn't have legal standing which is now calling into question the entire validity and purpose of the referendum process — the truest form of democracy in our great Republic.
Of course, the legal process isn't necessarily over, and NOM will be exploring whether to file a petition for rehearing en banc with the full Ninth Circuit or whether we will seek review in the Supreme Court itself.
Because, right now, the sovereign act of the people of Oregon — voting in 2006 to define marriage as the union of one man and one woman — went entirely undefended by the elected officials of Oregon, an abdication of duty that resulted in the long-standing understanding of marriage in Oregon being rewritten by a single federal court judge.
The policy fight over the definition of marriage is something that should ultimately be resolved by the people, not unelected judges. For now, Oregonians have been denied their voice on that important policy issue, and that is truly regrettable.
In contrast to Oregon, we have the example of the leaders in North Dakota. Like so many other states, North Dakota's marriage amendment defining marriage as the union of one man and one woman is under attack in federal court.
But the actions of the Governor and Attorney General in defense of the law have been exemplary to this point. They recently filed a response to the plaintiffs' motion for summary judgment in the case that outlines — brilliantly — so many of the critical and compelling arguments in defense of marriage.
Among many other critically important points, they make a few that I would like to highlight here:
The case involves two conflicting marriage institutions that cannot coexist.
As I mentioned in my email on Wednesday, they point out that "this case involves two mutually exclusive and profoundly different marriage institutions, marriage institutions that serve separate, distinct, and conflicting societal purposes."
In fact, in making the argument, they cite the minority opinion of Justice Alito in the Windsor case of last summer — an opinion that cites NOM co-founder Robert P. George's book, What Is Marriage? in making precisely that point!
They correctly point out that "North Dakota can have only one social institution denominated 'marriage.' It cannot simultaneously provide the historically proven valuable social benefits of man-woman marriage and the asserted benefits of the new genderless marriage. One necessarily displaces or precludes the other."
The States have the power to define marriage.
It should be obvious, but in light of the blatant activism of federal judges recently, it must be pointed out. So they do: "In cases spanning three centuries, the Supreme Court has emphasized that '[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the United States.'"
Furthermore, nothing in federal constitutional law requires North Dakota to recognize same-sex marriages performed in other states.
The media likes to say that last year, the Defense of Marriage Act was struck down in the Windsor case. But that's simply not true — only ONE of the FOUR sections of DOMA was struck down — the section that dealt with the federal government's recognition of marriage. The other three sections are still the law of the land — including Section Two, which clearly says states do NOT have to recognize same-sex marriages performed in other states.
Perhaps most importantly, they point out that:
North Dakota marriage law does not violate either the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment
The defendants point out that "[t]he due process clause of the Fourteenth Amendment is not a charter for restructuring [marriage] by judicial legislation." (see Supreme Court case, Baker v. Nelson).
In fact, they further point out that "Windsor also makes no mention of Baker and certainly does not inform lower courts that they are no longer bound by Baker. Windsor dealt with the constitutionality of a federal law defining marriage, not a state law" [emphasis added].
I realize that this is quite a bit technical, but I wanted to let you see that marriage can and IS receiving a phenomenal defense in court.
As cases like the one in North Dakota make their way up to the Supreme Court in the coming months, rest assured that NOM will be doing everything we can to support the defense of marriage in the courts and throughout society. If you are able this Labor Day weekend, could you please consider making a generous contribution to support our efforts to protect marriage and the faith communities that sustain it?
Brian S. Brown
PS: Enjoy your Labor Day weekend!