WASHINGTON — Marriage supporters are planning ahead for the new year — and recent developments, they say, make those plans tricky.
The issue of same-sex “marriage,” a hot-button item during the recent presidential election, was passed over by the U.S. Supreme Court on Nov. 29.
The court refused to review the 2003 decision of the Massachusetts Supreme Judicial Court which ordered the state Legislature to allow same-sex “marriage” in that state.
“We view this as a regrettable decision,” said C.J. Doyle, executive director of the Catholic Action League of Massachusetts. “It failed to redress the usurpation of democratic self-government by the SJC.”
The case the Supreme Court declined to hear was filed by the Catholic Action League and 11 Massachusetts legislators. They argued that the state court's action violated the republican form of government.
“There is a provision in the U.S. Constitution called the ‘guarantee clause’ which says that every state operates according to a republican form of government,” said Dan Avila, assistant director for policy and research at the Massachusetts Catholic Conference. “This means that the people are in charge through their representatives. What the plaintiffs argued in this case was that the Massachusetts Supreme Court, by redefining marriage, had become a super-legislature — usurping the power of the Legislature and, indirectly, the power of the people. So now it's a government by the court and not by the people.”
When this lawsuit went to lower federal courts, however, judges ruled that the guarantee clause did not actually address the issue of separation of powers. “They argued that this clause had been written to prevent something more dramatic,” Avila said, “such as the act of someone declaring himself to be king. In essence, the court said, ‘You may have a separation-of-powers problem, but it's not a monarchy.’”
The group Gay and Lesbian Advocates and Defenders, which represented plaintiffs in Goodridge v. Dept. of Public Health, the case challenging the state's marriage laws, said in a statement Nov. 29 that it “was pleased but not surprised” that the court declined to hear Largess v. Supreme Judicial Court of the State of Massachusetts.
“Since May 17, 2004, more than 4,000 same-sex couples have applied for marriage licenses in Massachusetts,” the group said. “In the November legislative elections in Massachusetts, all incumbents who supported the Goodridge decision were returned to the statehouse.”
Not a Setback
Attorneys at Liberty Counsel, a non-profit, pro-family organization which represented the plaintiffs in Largess, knew that getting a hearing from the Supreme Court was a long shot.
“This was a very difficult constitutional provision to interpret,” said Erik Stanley, chief counsel for Liberty. “This was more their decision not to get involved in confronting the guarantee clause, than confronting same-sex ‘marriage.’”
The Supreme Court does not give reasons for refusing cases and only accepts 1% of all cases presented each year. Supporters of traditional marriage do not believe they've suffered a setback.
“Eventually the Supreme Court will have to look at this issue,” Stanley said. “We are involved in two dozen cases on same-sex ‘marriage’, and we're going to see a conflicting decision that the Supreme Court will have to” resolve.
Most legal observers believe the Supreme Court will take up the issue when same-sex couples who were wed in Massachusetts move to other states and sue to get their “marriage” recognized. There is already one such lawsuit in Florida.
“These groups are as determined on this issue as the abortion forces were determined to get the ‘right to choose’ by distorting the language of the Constitution,” said Matt Daniels, president of the Alliance for Marriage — the group which wrote the Federal Marriage Amendment defining marriage as the union between one man and one woman. “Some of them are now trying to find a way to move more gradually to deceive the American people and not get a backlash. What we can say with certainty is that our side will lose in the courts — sooner rather than later.”
Supporters of traditional marriage interviewed for this article believe that, ultimately, the only solution to the problem of same-sex “marriage” will be to pass the Federal Marriage Amendment.
Doyle at Catholic Action League thinks so. “This issue must be removed from the hands of imperious and unaccountable judges and placed squarely in the hands of the people — where it belongs,” Doyle said.
Damage to Society
What worries supporters of traditional marriage is not so much the legalization of same-sex “marriage,” but the social and cultural changes that follow such legal decisions.
“If same-sex marriage succeeds, it will change the moral and social DNA of our culture forever,” Daniels said. “We have a solid mountain of social-science data that say kids do best with a mom and a dad.”
When Roe v. Wade legalized abortion in 1973, it caught the pro-life movement unprepared. In contrast, supporters of traditional marriage have been hard at work for years.
“We have a viable Federal Marriage Amendment already in play. President Bush supports us, as do the leaders of the House and Senate,” Daniels said. “We have a fighting chance, but we must use it now. Our generation decides for our kids and grandchildren. We better not blow it.
“The good news,” he said, “is that it's in God's hands.”
Sabrina Arena Ferrisi writes from Jersey City, New Jersey.