Marriage On Trial, Part 2

This is family policy matter program is produced by the North Carolina family policy Council of profamily research and education organization dedicated to strengthening and preserving the family and now from the studio. Here's John Rushton, president of the North Carolina family policy Council, thank you for joining us this week. Profamily policy matters is our pleasure to have Rick back with us on the show. Senior fellow for policy studies at the family research Council or FRC in Washington DC.

Peter is the author of the book outrage. How gay activists and liberal judges are trashing democracy to redefine marriage. Peter is also the author of the new FRC policy paper entitled marriage on trial. State laws defining marriage is the union of one man and one woman are valid under the Constitution of the United States were to be talking with Peter today about some of the important questions he answers in this paper. Thanks so much for joining us. Thank you for having me as we see proponents of the redefinition of marriage pushing this notion that sexual orientation is comparable to the Silverlight we have seen in the state of Virginia, a federal judge actually recently striking down that state marriage laws is unconstitutional and, in doing so siding the US Supreme Court's decision in the loving the Virginia case which dealt with the states previous ban on interracial marriage. Tell us about that case or moment.

If you would, and whether you believe it was proper for the judge in this case in Virginia to reference the loving decision in making a determination about whether a constitutional provision that recognizes traditional marriage is valid in that state was proper or incorrect right. That's one of the favorite precedents that the advocates of redefining marriage like to bring up because they they claim that there is an analogy between banning interracial marriage and what they call banning same-sex marriage. Now we consider same-sex marriage to be an oxymoron, and at what the laws do is to define marriage as a union of a man and a woman that doesn't ban anything just to find it, but but they see this analogy because both placed a limit in both cases, a limit is placed on a person's ability to marry the spouse or partner of their choice. In the case of the bands on interracial marriage. That limit was based on the race of your partner.

In the case of the current debates. The limit is based on the facts of your partner. But that's where that's as far as the analogy goes because no one has an unlimited right to marry the person of their choice.

You can't marry a child, a close blood relatives or person who's already married, so loving could not stand for the proposition that you have an unlimited right to marry the person of your choice. Instead what it represented was the significance of that classification based on race. It was not about marrying the person of your choice.

It was about limiting that choice on the basis of race, and that and classifications based on race are subject to the strictest scrutiny they will almost never be upheld because we have three constitutional amendments, the 13th, 14th and 15th amendments that were adopted after the Civil War specifically to eliminate legal discrimination based on race.

We have no comparable constitutional provision that have ever been adopted addressing the issue of sexual orientation, so there's no comparison at all.

I argue that it's the advocates of same-sex marriage who actually resembled the people who band interracial marriage because in both case. Both cases they were using and exploiting the institution of marriage in pursuit of a social goal which had nothing to do with the purposes of marriage bans on interracial marriage were exploiting marriage in support of the goal of racial segregation, but segregating the races has nothing to do with the purpose of marriage and in the current climate it's the advocates of same-sex marriage who are exploiting and using the institution of marriage to advance their social goal, which is the social acceptance of homosexuality itself, but the acceptance of homosexuality is not part of the public purpose of marriage bans on interracial marriage built walls between people to keep the races apart defining marriage as a union of a man and a woman built which caught across the most fundamental gap in the human race bringing men and women together for the reproduction of the human race and for the good of society Supreme Court's June 2013 decision in the case of United States the winter you mentioned this earlier, but wanted to talk about Donald in this is a case where the court struck down part of all federal Defense of marriage act or dome is unconstitutional.

No many of the federal judges would have overturned state marriage laws over the past year have referred directly to Windsor in their rulings is Windsor actually say. Should the decision provide a precedent for striking down state marriage laws well in the first review what the Defense of marriage act was about. It was passed by Congress in 1996 in response to some early state court decisions in first in Hawaii and then in Alaska as well that seem to point to the possibility that courts in those states would would declare a right to same-sex marriage.

Now know the normal course of events is that if you are married in any one state within our country, then your marriage will be recognized as valid and in every state.

I mean prior to the prior to the advent of same-sex marriage. The concern in the 1990s when when the legalization or the redefinition of marriage to include same-sex couples appeared began to appear is a realistic possibility. The concern was that if just one state were to do that then same-sex couples from anywhere in the country could go to that state, get married, and return to their home state and demand recognition of of their cortical marriages and you would have one state effectively redefining marriage for the entire country and for the federal government as well, so because of that concern. Congress passed the federal Defense of marriage act, which did two things. First of all, it specified that states do not have an obligation to recognize same-sex marriages conducted in other states and secondly, it provided that the for all purposes under the federal government under federal law is not binding on the states, but under federal law marriage would be defined as the union of one man and one woman, regardless of what any particular state might do it with that latter provision which is actually section 3 of the Defense of marriage act, which was challenged in the case United States versus Windsor which the Supreme Court struck down, but you will see and if you read the decision closely. They emphasize the fact that the historical tradition had been that the federal government defers to the states. With regard to who is married and in the federal government has not historically adopted its own definition of marriage and until the Defense of marriage act.

They said you know this is a such a deviation from tradition that we believe that it constitutes discrimination against legally married couples who are of the same sex in the states that recognize that so they said this discrimination against legally married same-sex couples. It was it was the effect of the Defense of marriage act and that that was not permissible. They did use this kind of language of due process and equal protection in which some people believe is provide a precedent for doing the same with the state definition but on the other hand, a very substantial part of that decision was saying the federal government must defer to the states and the federal government should not create a system where there are two different definitions of marriage within the same state. Now if the federal government is to defer to the definition of marriage and states that allow same-sex marriage, then the federal government should also defer to the definition marriage and states the defined marriage as a union of one man and one woman. That's why we believe that Windsor does not provide precedent for striking down the state marriage laws because it was based so strongly on the importance of the federal government respecting state marital important thing to understand is no appeal or you begin your paper marriage on trial by explaining that the U.S. Constitution is actually silent on the issue of marriage. Why is this fact important for us to understand is the battle over marriage continues all across our country and in our courts. Well, one of the frustrating thing these liberal activist judges essentially pretend that they their preferred social policy is contained in the Constitution to strike down the law because they don't like it because they think it unfair by some sort of arbitrary standard of their own making big only have the power to strike down laws whether federal or state laws. If they are in violation of some express provision of the Constitution and so that's why it's important for people to understand the Constitution is silent on the issue of marriage and where the Constitution is silent.

That means legislators are free to legislate the courts really should have no role in interfering with that Justice Samuel Alito said that in his venting argument in in the Windsor case, the case involving Defense of marriage act. Last year he made it quite clear that that since the since the Constitution is silent on this issue, the Supreme Court should be silent wanted to and leave it to the democratic process to be decided in speaking of the democratic process.

It certainly seems that in the states were majority of the citizens of the state have voted to implement an amendment to the Constitution defining marriage as the union of one man and one woman that really is the strongest display of the democratic process. When the people actually have the right to vote language into their constitution and they have done so despite that we still see federal courts across the country, striking down not only existing marriage statutes, but also those constitutional marriage amendments right.

Another reason why I am optimistic that some people more optimistic from the conservative perspective that the Supreme Court will not strike down the state marriage definitions because it would be a completely unprecedented situation.

I mean, in contrast to Roe V Wade, for example, their abortion decision in 1973. At that time. The majority of states were in the process of liberalizing their abortion laws and but here we have a situation where just within the last 15 years.

A majority of states, 30 states have amended their state constitutions to define marriage as the union of one man and one woman, in order for the people who are sovereign and are political system taking that issue out of the hands of judges to decide taking it out of the hands even of their elected representatives to decide and say no in our fundamental documents of our state government. We are going to define marriage as a union of a man and a woman.

It would be completely unprecedented for the Supreme Court to overturn the laws not only the laws of a majority of states, but to overturn the constitutions of a majority of states and not some archaic provision of those constitutions, but provisions that have been adopted by the people voting it were in referenda just within the last decade and 1/2 that that would be something completely unprecedented in our political and legal system and I'm skeptical that the court want to go that far.

61% of all in our states adopted all marriage amendment to RC Constitution in May 2012 so just a couple of years ago. Hopefully we pray and interfere in your optimism that the Supreme Court will defer to the voters in the states and continued to enable the states to define marriage as citizens through democratic processes. We are out of time for the show work. The listeners go to get a copy of FRC's publication marriage on trial. Well, you can find it on our website@rc.org FRC.org Peter Sprague want to thank you so much for being back with us on family policy matters and for the great work that you do. Thank you so much.

Thank you.

Before we close our like to invite you to follow the North Carolina family policy Council on Facebook. Just login and find us@ncfamily.org again of the NC family.org sure to like us when you visit. In addition, for instant updates on profamily news of interest.

Follow us on Twitter NC family cohort family policy matters.

Information and analysis, future North Carolina family policy Council join us weekly discussion on policy issues affecting the family. If you have questions or comments. 919-0708 visit our website and family.1