Constitutional scholar John Eastman was just named chairman of the board for the National Organization for Marriage. A former dean of Chapman University Law School and the founding director of the Center for Constitutional Jurisprudence, Eastman spoke with Register senior writer Tim Drake about the new appointment.
What expertise will you bring to the position?
I’m a constitutional scholar and a former Supreme Court law clerk. I’ve been involved in some 60 cases before the high court, a number of which have focused on religious freedom, the 14th Amendment and equal protection. I have also been heavily involved in the structure of the Constitution regarding federal law vs. the states, and I’ve handled litigation on free speech and religious-liberties issues on behalf of clients. As the conflict between the homosexual agenda and freedom of conscience becomes more pronounced, that expertise is going to be very important.
What are NOM’s key activities, at present?
There are several fronts. There’s the judicial front, where courts are trying to force a change in fundamental public policy. NOM is assisting in the efforts to defend traditional marriage. Where the courts have succeeded, NOM is involved, trying to overturn those decisions. Those are the legal and political fronts. A third front is that, increasingly, the effort to redefine marriage is running into direct head-on conflict with religious rights and freedom of conscience.
As examples, the chaplaincy corps in the military has been told that they cannot counsel on this issue. There was also the story that hit Sept. 22 about the elementary-school student who was suspended because he told another student that he thought homosexuality was wrong. We need to oppose these efforts. We’re being told we cannot hold a view that’s clearly rooted in human nature. This is happening with increasing rapidity, and we need to have a legal and political response to it.
Isn’t it the case that whenever traditional marriage has come up for a vote, people have overwhelmingly supported it?
Traditional marriage has been supported in every single instance where it’s come up for a popular vote. In most states where marriage has been redefined, it’s been imposed on the people of the state by the judiciary, and there are then efforts to prevent the people from having a say. Because getting a referendum on the ballot is so difficult in Massachusetts, for example, that was one of the first states to redefine marriage. The same fights have occurred in Washington, D.C., and elsewhere, depriving people of the right to vote on the matter.
Those fighting for traditional marriage can feel beaten down by the culture at large. Do you feel that victory for traditional marriage is possible?
Evil will be with us always, and it requires constant vigilance to defeat. I look at it as a litigator and an educator. There will always be threats to institutions grounded in human nature by those who think human nature doesn’t define limits. We need to be involved in the immediate defense of threats against marriage, but also take a long-range view by educating the next generation about the importance of the issues we’re confronting.
Is the protection of marriage a state issue?
It has always been a function of the states. In our federal system, the power to regulate the health and well-being of families — the police power — is not given to the federal government. How states decide to adjust their own internal institutions — adoption, marriage, divorce — has been a government power reserved for the states. When you try to shoehorn this issue into language from the 14th Amendment, you end up with the federal courts determining that there must be one rule nationwide, eliminating the possibility of the states experimenting with different models on how to address new social developments. Particularly when done with a social institution as fundamental as marriage, the consequences to society can be severe.
As a nation, we tried to grapple with different views on abortion in the years leading up to Roe v. Wade, but the court stepped in and shut down the discussion. Had we let it continue, we would have found a solution to the problem that protected the right of life but that was also charitable to women confronted with unwanted pregnancies. But the court shut that discussion down. I fear a similar shutdown of discussion on the question of the redefinition of marriage. In a democracy, these things will work out if we provide the opportunity to work them out in the laboratories of experiment that we’ve been given in our state governments.
Tell me about your background.
I am from Lincoln, Neb., but lived in several different states growing up. My undergraduate degree is from the University of Dallas. My J.D. is from the University of Chicago, and my Ph.D. is from the Claremont Graduate School.
What’s your religious affiliation?
I grew up and am a practicing Catholic.
Did you have any previous connection with the National Organization for Marriage?
Only peripherally, through the litigation in California regarding Proposition 8. I’ve gotten to know Brian Brown and Maggie Gallagher, and Robert George, the founding chairman of NOM, at various academic conferences.
How did you come to be named chairman?
Brian Brown asked if I was interested, and I said “Yes.” The board voted to put me on the board and to make me chairman.
Register senior writer Tim Drake writes from St. Joseph, Minnesota.