Marriage On Trial, Part 1

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 enough in the studio. Here's John Rushton, president of the North Carolina family policy Council and thank you for joining us this week.

Profamily policy matters. It is our pleasure to have with us on the show. Peter is senior fellow for policy studies at the family research Council or FRC in Washington DC research and writing focuses on the issues of marriage and family as well as human sexuality and religion in public life. 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 a new FRC policy paper entitled marriage on trial.

State laws the finding marriage is the union of one man and one woman are valid under the Constitution of the United States to be talking with Peter today about some of the important questions he answers in this paper before we begin, I want to take a moment to really encourage our listeners to tune into the show today because what Peter has to share with us is extremely critical to our understanding of the battle that is raging over the institution of marriage.

Not only our courts but also in the court of public opinion.

Thanks so much for joining us. Thank you for having me was our pleasure. Seems like every time we turn around lately. We hear about another federal court striking down marriage laws and even voter approved constitutional marriage amendments. The most recent was in Texas at the end of February. How concerned should we be as Christians and believers in the God ordained institution of marriage about how our culture being used to force the redefinition of marriage on the American public. Well, we should be very concerned and on a number of different levels, not just because this is seeking to impose a definition of marriage that is contrary to, and of the Judeo-Christian tradition but because of the way that they're going about it, and the implications for society if we were to change the definition of marriage. If we were to decide we want to just expand beyond the borders of of of who can be considered a married couple in our country which I think is a bad idea and would have never negative consequences. But if we are to do that should be done through the democratic process and it.

There are a handful of states old where they have done it to the democratic process now legally lobbied against that but but dad you know where we're willing to accept the decision made by that voters or their elected officials in those states. For the time being, at least, the less we can get a federal marriage amendment. But � but for them to go to court and try to have this imposed by the court is dangerous not just to the institution of marriage, or to their Christian faith. But it's dangerous to our system the government itself because this is not the way that decisions are supposed to be made where a liberal elite decides that they want to overturn a long-standing social consensus and so they essentially pretend that it's a constitutional right.

When it's clear there's nothing in the Constitution of the United States that would grant the right of a person to marry a person of the same speck in speaking of the courts. It seems quite likely that in the near future. The US Supreme Court will be forced to confront the definition of marriage had all and determine whether or not they believe the current court considers marriage as quote only the union of one man and one woman to be constitutional.

Today, Peter. What has the Supreme Court said about the definition of marriage. Well it's interesting because a lot of people don't realize that there is actually a binding Supreme Court precedent on the issue of states defining marriage as the union of one man and one woman. Now the reason it's not known very well is because this is a case that that's where the Supreme Court issued its decision in 19 72/40 years ago I would put this radical agenda is actually been pushed for for that launch.

There was a male couple, but try to marry in Minnesota and that they were turned down and took this case to court and the Minnesota Supreme Court did issue a written decision laying out in terms very similar to the terms that it is no that profamily attorneys are laying out today why marriage is defined as the union of a man and a woman, and that they peel back case to the US Supreme Court and the US Supreme Court dismissed the case quote for want of a substantial federal question, meaning that now that's different from refusing to take the case or hear the case. A dismissal for want of a substantial federal question is considered a binding precedent on the issues presented in the case.

Basically they said this is such an absurd claim that it's really not worth us taking the time to hear it but but we just want to establish one you know that that this is not right and so we are going to declare that there is no substantial federal question here.

Now a lot of people argue that, given that they didn't actually hear the case given that they didn't issue a written opinion, it's probably not going to feel bound by that, but technically, under the rules of precedent that remains the current binding precedent of the US Supreme Court as more recent cases, they have the opportunity, and indeed were asked by the attorneys in who were challenging California's proposition eight, the California marriage amendment. Last year they were asked to declare that there federal Constitution guarantees a right to same-sex marriage in the state and they refused. Now they did not require that the states have the right to have such a definition. What they did is sort of punt that question on a procedural issue. The state officials in California had refused to defend proposition eight and so they said that the proponents who had defended it in court at the lower levels actually did not have standing to appeal the decision of the District Court judge so they said were knocking to get your decision on the merits, the Ninth Circuit Court of Appeals decision on the merits. We we're vacating that that's just wiped off the box. Basically, they allowed the District Court decision to stand but that provides note binding precedent anywhere other than that district now but that's an area where some people think that they make Supreme Court has created precedent for overturning state definitions of of marriage is in the decision last year where they struck down the federal definition of marriage as a one man one woman union in the federal Defense of marriage act, but in that case, if you actually read it closely. The bulk of that decision is based on arguments regarding federalism and the fact that that dome of the federal Defense of marriage act was a deviation from the historical tradition of the federal government deferring to state definitions of marriage, and that was what they found was offensive about Delma so that the same principle of the federal government deferring to state definitions of marriage wouldn't we argue in favor of them upholding state definitions of marriage in states that define it as the union of a man and a woman as well as in the states that have redefined it to include same-sex couples always divorce that you know it's you know the writing handwriting is on the wall and obvious that the Supreme Court is going to strike down the marriage lot. I don't agree. I mean I'm not.

I'm not a betting man, I'm not going to put money on it. It's possible that they could they could do that but that I think they've learned their lesson from the Roe V Wade, I don't think they want a Roe V Wade of same-sex marriage where they presume to settle a controversial social question with one Supreme Court decision that was a failure in Roe V Wade, and it would fail with respect marriage. I think they're doing everything they can to avoid that. Actually when you paper you discuss the standard overview the court should use in cases involving sexual orientation, you would explain the forest what you mean by standard of review all of the four points that you outline the court should consider when these cases come before them well you said that homosexual activists claim that they are being discriminated against because because of their sexual orientation. Now there's no question that the marriage law creates a classification of sorts and the Constitution when it says that we have to have the equal protection of the laws that doesn't mean that every person has to be treated equally in every single thing the government does.

It doesn't mean for example that you have to give veterans benefits to people who never served in the military. It doesn't mean that you have to give food stamps to people who are wealthy okay so what we create classifications in the law all the time. If that channel. If those classifications are challenged. Then there are certain ways that the courts will evaluate them. In this case, the classification is not between homosexuals and heterosexuals as individuals.there is a classification of different couples that opposite sex couples are permitted to marry, and same-sex couples are not permitted to marriage. So in evaluating whether that's justified, the courts have to think first ask whether there's an infringement upon a fundamental right that in the 14th amendment been about the fifth amendment the 14th amendment. Talk about no person being deprived of life, liberty, or property without due process of law that term liberty is not further defined. A lot of people believe in the in the founding hear it referred just the physical liberty of the freedom to move around as opposed to being imprisoned for you know the freedom to walk freely and go travel where you want but the courts have interpreted that more broadly in terms of freedom to do different things and rights to engage in different activities but and they have declared that there is a fundamental right to marriage, but again the question is, what's the definition of marriage.

Now to identify a new fundamental right of the courts have said, you have to first define precisely the right being insisted upon and and in this case it's the right to marry a person of the same sex and then you have to stop. Is this a right that is deep objectively, deeply rooted in this nation's history, legal traditions and practices. Obviously, the right to marry a person of the same sex is not deeply rooted in this nation's history, legal traditions and practices, so there's no fundamental right to same-sex marriage but with respect to the argument about discrimination and so forth. Most classifications are subject only to rational basis review. In other words, the law will be upheld.

The statute will be upheld as constitutional unless it can be shown that there is no conceivable rational basis for it doesn't have to be a persuasive rationale is that the be a conceivable rationale for now. There are other categories where there is a higher standard view is heightened. No heightened review or course heightened scrutiny or strict scrutiny.

A characteristic like race, is subject to strict scrutiny.

Almost no classification based on race will ever be upheld or a correct category like sex, is subject to heightened scrutiny is not quite at the level of race but but it's higher than just sort of any general classification.

There is no Supreme Court precedent declaring that classifications based on sexual orientation, even if you treat this as one of subject anything but a butter rational basis test to be subjected to higher than that they would have to demonstrate a long history of discrimination, it would have to be a characteristic that had nothing to do with their ability to perform or contribute to society.

It's usually an immutable characteristic and it usually involves a class of people who are politically powerless.

Now there's been a long history of disapproval of homosexual conduct, that's not the same as discrimination against a class of people because of who they are certainly homosexuals are able to contribute to society in a variety of ways. The question is whether same-sex couples can contribute to the public purposes of marriage. Chief among them appropriate natural procreation and providing a mother and father to the children raised by that couple.

Obviously they can't do those particular things in the question of immutability homosexual conduct can clearly be changed at will, even if same-sex attractions are more difficult to change and category political powerlessness.

You almost have to laugh because it's clear that homosexuals today in 2014 have a political power that is far greater, disproportionately great compared to their size of their population. You have been extremely generous with your time, but unfortunately we are out of time for this show work the listeners go to get a copy of the four C's publication marriage on trial. Well, you can find it on our website@frc.org and I think it is featured right now on on the homepage that I look forward FRC.org. I want to thank you so much for being back with us on family policy matters for the great work with you and the family research Council goes on other half. Thank you so much. Thank you. Family policy matters. Information and analysis featured North Carolina family policy Council join us weekly discussion on policy issues affecting the family.

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