Prop. 8, DOMA on the Docket
Supreme Court to Rule on Definition of Marriage?
BY Joan Frawley Desmond
December 30, 2012-January 12, 2013 Issue | Posted 12/21/12 at 4:13 PM
WASHINGTON — Ending months of intense speculation, the U.S. Supreme Court confirmed on Dec. 7 that it would take up two high-profile "marriage equality" cases, a move that could result in the legalization of same-sex "marriage" across the nation.
The court’s decision to address challenges to the federal Defense of Marriage Act (DOMA) and Proposition 8, California’s ban on same-sex "marriage," prompted enthusiasm and dueling predictions from experts on both sides of the issue.
John Eastman, chairman of the National Organization for Marriage (NOM) and a law professor at Chapman University in California, said he was "very pleased that the court has taken up both the DOMA case and the Prop. 8 case."
If the high court had denied review of the California case, he noted, "California, the largest state in the country, would have same-sex ‘marriage’ by default. It would have a collateral impact all over the country."
Chad Griffin, president of the homosexual-rights organization Human Rights Campaign, expressed confidence the high court will endorse same-sex "marriage." "Today’s news is nothing short of a milestone moment for equality," Griffin said in a New York Times report.
However, legal experts note that neither case asks the high court to explicitly address whether constitutional guarantees of due process or equal protection secure the right to marry for same-sex couples.
Thus, while the justices could produce a sweeping decision that will upend U.S. marriage law and, by extension, potentially threaten the free exercise of church institutions, they need not do so. They could issue a split decision (with one ruling favoring and the other opposing same-sex "marriage") or even two narrow rulings that might uphold the status quo and discourage federal courts from overturning marriage laws passed by Congress or state legislatures.
Oral arguments for both cases will likely be scheduled in March, with a ruling expected by June.
The news from the high court came just a month after the 2012 election secured "marriage equality" victories in four states. The hard-fought campaigns exposed deep divisions among U.S. voters about the meaning and purpose of marriage and also showcased the U.S. bishops’ firm resistance to any change in the nation’s marriage laws.
"The U.S. Supreme Court’s decision to hear these cases is a significant moment for our nation," acknowledged Archbishop Salvatore Cordileone of San Francisco, chairman of the U.S. bishops’ Subcommittee for the Promotion and Defense of Marriage, in a statement released after the announcement.
"We pray for the court, that its deliberations may be guided by truth and justice, so as to uphold marriage’s true meaning and purpose," said Archbishop Cordileone, who led the successful 2008 campaign to pass Proposition 8, which defines marriage in California’s Constitution as the union of one man and one woman.
The Defense of Marriage Act was passed by Congress and signed into law by President Bill Clinton in 1996. DOMA defines marriage as the union of one man and one woman for purposes of federal law.
In a growing number of states where "marriage equality" laws have been passed, same-sex couples have been denied federal benefits available to other married couples, and some have filed legal challenges to DOMA.
After the Obama administration announced in February 2011 that it would no longer defend DOMA, Congress stepped up to defend the federal statute. The case before the high court, the Second Circuit Court of Appeals’ decision in Windsor v. United States, asks the justices to decide whether the federal government has the power to reject a marriage authorized by states, which generally hold responsibility for marriage law.
There are several other legal challenges to DOMA wending their way through the federal courts, and NOM’s Eastman says they will be "on hold until the case now before the justices is decided."
"The morning after the ruling, a series of orders will either affirm or overrule the other DOMA cases, depending on whether the court rules that DOMA was unconstitutional," Eastman predicted.
"If the Supreme Court overrules the decision of the Second Circuit New York DOMA case, they send the other cases back to the lower courts with new guidance for further review."
Bill Duncan, the director of the Marriage Law Foundation, a nonprofit organization dedicated to preserving the definition of marriage as the union between a husband and a wife, argues that it’s vital for the Supreme Court to hear the DOMA case.
"The Second Circuit case not only ruled that Congress lacked the authority to define marriage, but that DOMA, insofar as it defines marriage as between a husband and wife, is unconstitutional," said Duncan, who is a law professor at The Catholic University of America.
If that ruling stands, it would bolster legal challenges to every state marriage law that has not incorporated same-sex couples.
Legal experts note that the justices could also issue a "narrow" ruling that merely permits federal benefits for same-sex unions in states with "marriage equality" laws and withholds a decision with far-reaching consequences.
Proposition 8 Appeal
The Proposition 8 appeal, which addresses the constitutionality of a voter initiative that overturned a California Supreme Court decision to legalize same-sex "marriage," could result in a ruling with limited impact. The key issue in this case is whether a state can withdraw a previously recognized right from a minority that has experienced discrimination.
"It’s possible that both cases could be decided without reaching the ultimate question of whether there is a right to so-called same-sex ‘marriage’ under the federal constitution," confirmed Joseph Infranco, a senior attorney for the Alliance Defending Freedom, a public interest group that has served as co-counsel for the defense in the Proposition 8 case since the litigation began.
With proponents of same-sex "marriage" arguing that the U.S. Constitution requires marriage rights for same-sex couples, Bill Duncan expects that oral arguments in both cases will likely feature at least a brief discussion of the meaning and purpose of marriage.
"What is the purpose of marriage? Some say it’s a way to give status to adult relationships, but Congress [in DOMA] said, ‘No, marriage is a way to encourage men and women to take responsibility for the children their unions create,’" said Duncan, tracing the outline of the opposing arguments.
The 2012 election outcome has heartened advocates of "marriage equality," and some legal experts who back their cause now argue that the high court’s "swift" decision to address the issue offers reason for optimism.
Infranco of the Alliance Defending Freedom takes the opposite view: "Historically, the Supreme Court accepts a case to reverse a decision more often than to affirm it. If the court is satisfied with a lower-court decision, it has less reason to consider it," he told the Register.
Infranco also echoed the bishops’ concerns about the impact of same-sex "marriage" on religious freedom.
"The agenda to redefine marriage has an aggressive and intolerant side to it," he said. "A great concern for us is the evitable collision of free exercise of religion and sexual license."
He acknowledged that if the Supreme Court rules in favor of same-sex "marriage," precedent suggests that the decision would include a "strong argument for a religious exemption. The court recognizes that free exercise is important," he said.
But "should the court choose to redefine marriage, that decision starts an almost inevitable process where there will be pressure for people to surrender free-exercise rights. Those exemptions would be assaulted in the next phase of litigation," he predicted.
Just days before the Supreme Court announced that it would hear the two marriage cases, the bishops issued a "Call to Prayer for Life, Marriage and Religious Liberty" as part of a pastoral response for the protection of life, marriage and liberty.
Archbishop William Lori of Baltimore, the chairman of the bishops’ Ad Hoc Committee on Religious Liberty, has raised the alarm about the impact of legalized same-sex "marriage" on religious freedom.
While state "marriage equality" laws generally exempt priests from solemnizing same-sex unions, Archbishop Lori said in a previous Register interview that the "real threat" to the free exercise of Catholic institutions "lies in the area of licensing of Catholic Charities’ adoption agencies and accreditation of schools and universities that maintain their support of traditional marriage."
Said Archbishop Lori, "It is not unthinkable that defending traditional marriage will be regarded as bigotry and hate speech and that all kinds of strictures will be placed on our schools."
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