NOM BLOG

Category Archives: Supreme Court

State's Rights and the Defense of Marriage

The battle to defend marriage, and the faith communities that sustain it, is increasingly coming down to one’s view of the Constitution and particularly what the Founding Fathers intended as the balance between state’s rights and the powers of the federal government.  Activist judges and an overreaching Obama administration continue to attempt to curtail the right of states to define marriage as they see fit.

Judicial ActivismHowever, Jennifer Hickey of Newsmax wrote yesterday reminding each of us that protection of state’s rights continues to gain supporters in the US House of Representatives.  She reports on Congressman Weber’s (R-TX) “State Marriage Defense Act” and the growing number of co-sponsors the bill has.

Congressman Weber introduced the bill so that,

If state law recognizes two people as married, federal law will recognize them as married; if state law does not recognize them as married, federal law will not recognize them as married.

"We do not want to apply Massachusetts law in Texas, any more than Massachusetts wants Texas law applied there," U.S. Rep. Randy Weber, who in January introduced the State Marriage Defense Act of 2014, told Newsmax.

The Texas Republican's legislation currently has 38 co-sponsors and is supported by the Family Research Council, National Organization for Marriage, Ethics & Religious Liberty Commission, U.S. Conference of Catholic Bishops, Concerned Women for America, and Heritage Action.

The congressman acted in the wake of widespread confusion among states on how to react to the Supreme Court's decision last year to strike down parts of the federal Defense of Marriage Act.

Weber said his bill would "provide clarity to federal agencies seeking to determine who qualifies as a spouse for the purpose of federal law.

Congressman Randy Weber (R-TX)

"This legislation is not about denying anyone the right to marry, but it is a states' rights issue with the goal of helping to clarify the confusion among federal and state agencies."

Ryan Anderson of The Heritage Foundation told Newsmax, “[T]hat Weber's bill protects ‘the sovereign authority of states to recognize marriage as they see fit. It does not say what marriage has to be defined as in any particular state. I do think the Justice Department's decision to ignore the Utah law highlights the need for this law.’”

The State Marriage Defense Act will "restore proper legal order to the scene and correct the administration's unlawful practice," Notre Dame law professor Gerald Bradleywrote, saying that federal agencies "have no inherent legal authority to define marriage. Neither does the president or his attorney general, so long as Congress has exercised its paramount authority to do so."

To urge your Congressman to support the State Marriage Defense Act, follow this link and send her or him an email.

"A Thumb on the Scales"

Salvatore J. CordileoneCatholic Archbishop Salvatore J. Cordileone of San Francisco, the Chairman of the United States Conference of Catholic Bishops' Subcommittee for the Promotion and Defense of Marriage, has written a piece responding to Attorney General Eric Holder's announcement that the federal government will recognize the illegal same-sex "marriages" that took place in Utah around the turn of the year.

Archbishop Cordileone's article is posted at the USCCB blog. Here's a glimpse of what he has to say [emphasis added]:

Attorney General Holder is ignoring Utah law and imposing a contrary federal definition of marriage in that state. In this, General Holder’s decision is actually contrary to the Supreme Court's decision last year in United States v. Windsor. Windsor unfortunately struck down a uniform federal definition of marriage, but it made clear that the federal government is to respect a state's definition of marriage. In particular, the Court said that the federal government is to defer to “state sovereign choices about who may be married” and furthermore criticized federal actions – like General Holder’s – that “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.” 

Read the rest here.

Imagine The Government Suing Phil Robertson

National Organization for Marriage

Dear Marriage Supporter,

There's a bigger picture surrounding the recent media sideshow involving Phil Robertson's unjust persecution by Hollywood liberals. A bigger threat looms on the horizon, one that impacts each one of us. And I'm asking you to join the National Organization for Marriage today in standing up to that threat by signing an important new petition we launched just yesterday.

When Phil Robertson expressed his personal religious beliefs and values in his interview with GQ, the self-appointed "thought police" of the homosexual lobby was quick to pounce and begin their "prosecution" (really, persecution).

We all know how things unfolded from there: A&E executives caved to the pressure of Hollywood bullies; a groundswell of unprecedented support for Phil (including our own petition that you signed — thanks again!) soon flooded A&E's inboxes; and finally the network reversed course and reinstated Phil to his show. But, imagine for a moment...

...Imagine that the situation didn't involve a high-powered lobby and busy-body "thought police." Imagine instead that Phil had been up against the full force of the government and the actual police.

...Imagine that it hadn't been a network with the mere ability to hire and fire. Imagine instead that the man-in-charge was a federal judge, able to saddle Phil with criminal "hate-speech" charges, civil rights violations, and onerous fines.

...Imagine that it wasn't just a Hollywood clique and cabal disapproving of a certain celebrity's Christian values. Imagine instead a new State regime wherein those values were the legal and cultural equivalent of racism, and any citizen expressing those values was subject to punishment.

This is what our country is facing if the same-sex 'marriage' movement gets its way: a society in which not just Phil and other celebrities who voice Christian values are put in the crosshairs and targeted for persecution, but any ordinary citizen who believes in traditional values — ordinary citizens like you and me — will be liable to sanction.

We've already seen this sort of thing happen, and not even just in states where same-sex 'marriage' has been forced on the people. Even in places where true marriage is still the law, we've seen florists, bakers, photographers, bed and breakfast owners and others have found themselves facing penalizing fines and hauled into court as bigots simply for maintaining that marriage is the union of a man and a woman!

That is why we must act today, to ensure that that never comes to pass for our nation. We need to tell Congress right now to amend the US Constitution to protect the identity of marriage as the union of one man and one woman. Click here to sign our petition and send this urgently-needed message.

The stakes are truly that high. Federal judicial activism has run amok, most recently in the State of Utah where a single federal judge tried to throw out the state's marriage amendment — enacted by a strong majority of both the legislature and the citizenry. So brazen was this move that the Supreme Court — in a very rare move — decided unanimously to stay that decision while the State of Utah defends the amendment in court!

The fact is, we just cannot let something as crucial as the definition of marriage rest in the hands of an out-of-control federal judiciary. And remember, defending and defining marriage in our constitution is essential to protecting our First Amendment rights. If marriage is redefined nationwide, traditional views and values like Phil Robertson expresses will be forced from the public square and even possibly made grounds for criminal action!

So please act right now and sign this important petition. It will only take a minute of your time. Your voice is needed so that Congress hears this message loud and clear: our right to express our values is under attack, and must be protected!

Thank you for joining us in this very important fight.

Faithfully,

Brian S. Brown

P.S.: Please take a moment to sign this important petition right away. And when you've finished, please share this message via email, or post on Facebook and Twitter so that we can gain as many signatures as possible for this important cause!

National Organization for Marriage Commends US Supreme Court for Staying Utah Federal Judge's Ruling Redefining Marriage

FOR IMMEDIATE RELEASE: January 6, 2014
Contact: Elizabeth Ray or Matille Thebolt (703-683-5004)


"The decision by a single federal judge to redefine marriage in Utah is lawless, and we are pleased that the Supreme Court has put this decision on hold to allow the state to appeal it in an orderly fashion." — Brian Brown, NOM president —

nom_logo

Washington, D.C. — The National Organization for Marriage (NOM) today commended the US Supreme Court for staying the decision of Utah federal judge Robert Shelby which invalidated the state's definition of marriage as the union of one man and one woman. The stay will prevent further same-sex 'marriages' from being performed and allows the higher courts to consider Utah's appeal of the ruling in a deliberate and thorough fashion.

"It was outrageous that this brazen judge appointed by President Obama would substitute his views for the sovereign decision made by both the Utah Legislature and the people of the state, who voted overwhelmingly in favor of defining marriage as the union of one man and one woman," said Brian Brown, NOM's president. "The decision by a single federal judge to redefine marriage in Utah is lawless, and we are pleased that the Supreme Court has put this decision on hold to allow the state to appeal it in an orderly fashion."

Judge Shelby, appointed to the bench by President Obama, issued his decision late on a Friday afternoon during the holidays, and refused to stay it to allow the state to appeal the ruling. Shelby justified his decision in part by speculating that a majority of the US Supreme Court would agree to redefine marriage, something they specifically declined to do in 2013 when they considered two cases before them on the issue. Instead, the majority in the Supreme Court ruled that states do in fact have the power to define marriage, a finding that Shelby twisted to justify his rewriting Utah's marriage laws.

"The actions of this activist judge are an affront to the rule of law and the sovereign rights of the people of Utah to define marriage," Brown said. "Shelby has attempted to twist what the Supreme Court ruled in the Windsor decision - that states have the right to define marriage - and turn it into the exact opposite conclusion. It's gratifying that the US Supreme Court has decided to stop this nonsense and allow the state of Utah the time to reverse it on appeal."

Brown noted that no matter how this case is decided, it highlights the need to preserve marriage in the US Constitution. "Everyone in America should be concerned to see how easily activist judges can cavalierly toss out the will of overwhelming majorities of legislators and voters alike. It's becoming increasingly clear that the people of America need to reclaim their sovereignty and amend the US Constitution to protect marriage as the union of one man and one woman."

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To schedule an interview with Brian Brown, President of the National Organization for Marriage, please contact Elizabeth Ray (x130), [email protected], or Matille Thebolt (x143), [email protected], at 703-683-5004.

Paid for by The National Organization for Marriage, Brian Brown, president. 2029 K Street NW, Suite 300 Washington, DC 20006, not authorized by any candidate or candidate's committee. New § 68A.405(1)(f) & (h).

Will the American People Make 2014 the Turning Point for Marriage

The Daily Caller published NOM president Brian Brown’s end-of-the-year Op-ed, where he discusses how pivotal 2014 will be for marriage.  Brown writes:

Marriage in 2014The American people know how important marriage is to the country, and to families. We’re fed up with the elite telling us marriage must be abandoned in the name of “equality.” America needs men and women to come together, produce children, and raise those children with the love and support of both a mother and a father. That’s what marriage does, and that is profoundly good for the country.

Looking back at what the courts did in 2013, and could do again in 2014 to undermine marriage, Brian makes it clear that the only way to protect marriage from activist justices is to amend the U.S. Constitution.  He continues:

Regardless of what the Court does, the survival of marriage as the nation has always known it may well depend on whether the American people can again be roused to take action. They’d need to do more than sign a petition — they’d need to demand that their political leaders amend the US constitution to preserve marriage.

There is, of course, already a federal Marriage Protection Amendment, authored by Rep. Tim Huelskamp of Kansas, working its way through Congress. If you haven't taken action to urge your legislators to enact this important law, please do so right away!

G.K. Chesterton wrote, “The greatest political storm flutters only a fringe of humanity. But an ordinary man and an ordinary woman and their ordinary children literally alter the destiny of nations.”

In 2014, ordinary men and women across this country will need to step up and demand that their political leaders amend the Constitution to preserve marriage.  And when they do, they will alter the destiny of this nation.

 

"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.

Redefining Marriage "Consistently Heedless of Logic"

Writing today in The Public Discourse, Matthew J. Franck probes "the prominence of [the] assault on reasoning itself" within the movement to redefine marriage:

Rather than say what marriage is—which anyone can see is an absolute prerequisite to saying whether "equality" demands its availability to partners never before thought capable of marrying—these advocates simply shout "marriage equality" ever more loudly, point to an array of "government benefits" linked to marital status, and make their desire for the thing substitute for an argument about what the thing is that they want.

You can read the rest of his article here.

M.Franck

Eviscerating our First Amendment Freedoms

"It's an evisceration of our freedom of association," said John Eastman, the chairman of the National Organization for Marriage...

We’ve been saying for years that one of the first casualties when you redefine marriage are our first amendment rights of religious liberty, free speech, and association.  Now even the mainstream media has picked up on the growing list of attacks on the rights of businessmen and woman who wish to run their enterprises by the tenets of their faith.  The Wall Street Journal reported,

Erasing the First Amendment

As more states permit gay couples to marry or form civil unions, wedding professionals in at least six states have run headlong into state antidiscrimination laws after refusing for religious reasons to bake cakes, arrange flowers or perform other services for same-sex couples.

The issue gained attention in August, when the New Mexico Supreme Court ruled that an Albuquerque photography business violated state antidiscrimination laws after its owners declined to snap photos of a lesbian couple's commitment ceremony.

Similar cases are pending in Colorado, Illinois, New York, Oregon and Washington, and some experts think the underlying legal question—whether free-speech and religious rights should allow exceptions to state antidiscrimination laws—could ultimately wind its way to the U.S. Supreme Court. (Read more)

However, there is a easier way to resolve this issue than going to the US Supreme Court – Don’t Redefine Marriage in the first place.

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.

Cheated: How the Courts’ Treatment of Prop 8 Robbed America of its Democratic Process

Frank Schubert, NOM’s national political director, published a commentary yesterday at The Witherspoon Institute’s Public Discourse blog, reflecting on the course of court events that led to the recent U.S. Supreme Court decisions and the consequences those decisions have engendered.

BB PROP 8 RALLY 056 Frank SchubertSchubert points out that the "legal circus" has not only effectively disenfranchised more than seven million California voters, and that this should upset all of us: “Regardless of whether you see voters defining marriage as the union of one man and one woman as the ‘good guy’ or the ‘bad guy’ in this political drama, the process that killed marriage in California should greatly concern anyone who cares even remotely about democracy and the rule of law.

Schubert goes on to answer an oft-asked question in the wake of the recent SCOTUS decision: “How do you feel?”

I feel like we were cheated. Just like I felt as a kid watching the bad guy put a sleeper hold on his opponent, or hitting him below the belt or with the brass knuckles while the referee had his back turned, so have the legal system and politicians cold-cocked the people of California—seven million of whom went to the polls to lawfully enact Prop 8. Only this time, I realize there’s not likely to be a rematch. The cheaters won.

I feel like the rule of law has been shredded, and conniving politicians have been rewarded for ignoring their sworn oath of office. Public confidence in the judicial system has been dealt a severe blow. Supporters of same-sex “marriage” may be happy with the result today, but hold on until the tables are turned and a conservative governor and attorney general refuse to defend a law they don’t personally support, and there’s nobody left with standing to defend it. …

I feel like a broadside has ripped a great hole in the initiative and referendum process itself. I have managed nearly 40 statewide ballot initiative campaigns in my career. The initiative process is one of the few viable ways to get a recalcitrant government to respond to legitimate issues that are not being addressed by the legislature or the state administration. By its nature, citizens are often pushing a law that is opposed by those in power.

Now those very people in power—the governor and attorney general—have been given a pocket veto over the initiative process itself. They can invalidate any measure they don’t personally support simply by refusing to defend it in federal court. Such power was never contemplated by the framers of the constitution, or by the people of California, but that is the practical result of the Supreme Court’s ruling on Prop 8. Again—it is marriage today, but tomorrow it could be any other issue on the political spectrum.

You can read the rest of Schubert’s insights here.

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:

Peters: PA AG's Refusal to Defend Law is Result of Bad Prop 8 Ruling

Juliet Eilperin of The Washington Post:

Pennsylvania attorney general Kathleen Kane announced Thursday afternoon she will not defend the state in a federal lawsuit filed this week challenging the constitutionality of the state’s ban on same-sex marriage, calling the prohibition “wholly unconstitutional.”

...Thomas Peters, spokesman for the National Organization for Marriage, said Kane’s refusal to defend the ban represented a sort of “pocket veto” of the law.

“This is just one more example of how the Supreme Court set a bad precedent [last month] in allowing elected officials to not represent the will of the people when they find it expedient,” he said an in interview.

... Pennsylvania General Counsel James D. Schultz said in a statement he and his colleagues “are surprised that the Attorney General, contrary to her constitutional duty under the Commonwealth Attorneys Act, has decided not to defend a Pennsylvania statute lawfully enacted by the General Assembly, merely because of her personal beliefs.”

... the state GOP chairman Rob Gleason released a statement calling it “unacceptable for Attorney General Kathleen Kane to put her personal politics ahead of her taxpayer-funded job by abdicating her responsibilities.”

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)