Posted on 04/21/2015 9:19:37 AM PDT by SeekAndFind
As the U.S. Supreme Court prepares to hear oral arguments next Tuesday on whether states will continue to be free to define marriage for their own citizens, a number of amicus briefs have been filed arguing that the U.S. Constitution does not guarantee a fundamental right to same-sex marriage.
Heritage Foundation Senior Fellow Ryan Anderson and prominent attorney and constitutional law expert Gene Schaerr recently co-authored their own amicus brief that asserts that the U.S. Constitution does not require states to redefine marriage to allow for two individuals of the same gender to get married.
Speaking at a Heritage Foundation discussion on Monday, Anderson and Schaerr, a former associate counsel to President George H.W. Bush, explained their brief in detail and offered more reasons as to why the Supreme Court should not force a decision in favor of same-sex marriage on all 50 states to uphold as law.
Anderson, who co-authored the book What is Marriage? Man and Woman: A Defense, explained that governments did not originally get into the "marriage business" because they wanted to be involved in their citizens' romances. Rather, state governments got involved in marriage so that the children who were born from marriages would have the best chance of having a stable family environment to grow up in, which included both a mom and dad.
"There is nothing in the U.S. Constitution that requires all 50 states to redefine marriage," Anderson asserted. "The Constitution is simply silent on whether the consent-based vision of marriage or the comprehensive vision of marriage is the true definition of marriage. It is silent on whether the states should devise their marriage policy to serve."
Schaerr discredited a notion that a person has a constitutional right to get married to the person they love as long as they are two consenting adults.
"The bottom line is … there has never been any right to marry the person you love and so a states' rejection of that claimed right couldn't possibly be a denial of due process under the plain language of the due process clause of the Fourteenth Amendment," Schaerr asserted. "If we turn to the equal protection clause of the Fourteenth Amendment, the argument that same-sex marriage is based on, that clause also has holes in it."
Schaerr also discredited a widely portrayed notion that bans on same-sex marriage are discriminatory against gays and lesbians.
"Unlike the old Jim Crow laws that prohibited mix-raced marriages, the man-woman definition of marriage doesn't offend the equal protection guarantee because it allows any otherwise qualified man and woman to marry, regardless of their sexual orientation," Schaerr said.
"The state man-woman marriage laws do not deny anybody the ability to marry based on their sexual orientation. There is no question on the marriage application that asks are you gay or lesbian," Schaerr continued. "The law doesn't care. The law just says that there are certain requirements for marriage and if you are willing to comply with those requirements, then we will give you a marriage license."
Anderson argues that redefining marriage as a union between two consenting adults would have drastic societal consequences.
"If you redefine marriage to say that it is the union of any two consenting adults, irrespective of sexual complementarity, how will we as a community insist that fathers are essential when the laws redefine marriage to make fathers optional?" Anderson asks. "That is the challenge that faces the society that redefines marriage as consenting-adult romance and care-giving. It eliminates the public message of marriage as about uniting a man and a woman as husband and wife so that children will have both a mom and a dad."
With unelected federal judges overturning a number of states' gay marriage bans in the last year and many people thinking the Supreme Court could do the same a national level, Anderson said that just because the court has the power of judicial review, that does not mean the Supreme Court reigns supreme.
"I think it is important here to say that judicial review is not the same thing as judicial supremacy," Anderson said. "The Supreme Court is not supreme. Judicial supremacy is a problem when it claims to be the only branch of government that has the obligation the defend and uphold the Constitution. All branches of government, the three federal branches and the state governments, take that oath to defend the Constitution. All branches of government are co-equal in interpreting what the Constitution means."
Although many are confident that at least five justices will rule in favor same-sex marriage, Schaerr explained that no Supreme Court justice has ever written an opinion that held that there is a constitutional right for same-sex couples to get married.
"In fact, there are three justices that have written or have joined opinions that clearly say there is no constitutional right to same-sex marriage and Chief Justice Roberts' opinion in the Windsor case goes at least half way there," Schaerr stated. "So as of right now, in terms of Supreme Court Justices, its three-and-a-half on our side and nobody who's committed to recognizing a Constitutional right to same-sex marriage."
The Constitution doesn’t require marriage at all.
No. But that won’t keep the Courts from sooner or later finding such a requirement.
We should all know by now that regardless of what SCOTUS, who has long since abandoned the Constitution as the basis for their decisions, decides, the Constitution gives the feds NO power to interfere with marriage. It is a states’ issue and the states have the right and the duty to reject and nullify unconstitutional federal acts which are acts of tyranny.
Yep. I feel a penumbra coming on...
Buggery is now mandatory. Its in the penumbra.
SS marriage would be followed by gaystopo admissions that both a mom and dad are necessary, and therefore marriage by three consenting adults is a Constitutional right - the original two including one of the opposite sex as surrogate mom-or-dad, as needed.
Not a single person in the Congress or in the state legislatures who voted to ratify the 14th Amendment to the Constitution believed they were voting to require states to allow same sex “marriage.” Not a single person.
The amendment had one purpose; to guarantee to former slaves the same rights as enjoyed by white people.
How then can the 14th Amendment mean something today that it did not mean with it was adopted?
It can’t.
If the Supreme Court rules that it does, we will have lost our Republic (again) and this country will be a mere tyranny of judges who rule for life.
book mark
Was the 10th Amendment repealed?
Correction:
“ Does the Constitution Will Justice Kennedy require Same-Sex Marriage in All 50 States?”
The constitution is pretty irrelevant at this point because at least five justices decided it should be.
Did I mention that Grahamnesty votes for EVERY Obama appointee?
Will Kennedy and the four liberal Dems on the court force gay marriage on the states?
And if so will any states pass laws that defy the order?
The old polygamy cases (Reynolds comes to mind) roughly stand for the proposition that its up to the government to decide what forms of marriage are acceptable to society (that is, religious tenets to the contrary have to yield to the government); and it seems the Courts have asserted themselves as the deciders of social acceptability. They clothe their opinion in the form of finding a constitutional right to homosexual marriage of a couple, and for the time being, that's as far as the constitutional right extends. Who know what the arbiters of social justice will decide 10 or 20 years from now - but it must be a relief to not be tethered to the principle of consistency.
They recognize the marriage as valid. Full faith and credit applies (Article IV).
Same sex marriage CAN ONLY be possible in areas..
WITH A POPULATION THATS POLITICALLY APATHETIC..
The Constitution is silent on the issue, so anything goes.
I feel sorry for Utah.
They were required to give up their religious belief of polygamy as a condition of statehood.
Because so many gays have gotten married in states where laws and constitutional amendments preventing SS marriage were overturned by black robed tyrants, I fear the SC may just rule that the ship has already sailed and side with them by default.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.
