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."
I'm not sure how the 17th amendment, (changes how senators are elected) repeals the 10th.
....your comment is very interesting. But, can you go real slow and be real specific about how the 17th “effectively repealed the 10th”, kinda like you were holding a class for the first grade on the first day of the school year.
I’m seriously not arguing with you. I just want to understand your “specific” grounds for stating this.
There is no mention of the matter in the Constitution; an honest jurist would admit that the 10th Amendment indicates it is a matter that state governments are concerned with. That would be the proper interpretation. What we will actually get is an act of monumental legalistic flimflam to invent a right to queer marriage, which by effectively disenfranchising anyone who voted at the state level to define marriage as one man, one woman, essentially removes the legitimacy of the Union itself, as power is supposed to reside ultimately in the people and the states.
Check out the link in #42.
We’ll find out...
But...
If that happens - I want CONSTITUTIONAL FIREARM CARRY in all 50 States as well. No ifs, ands, or buts. One state line to the next, no questions asked.
You want that right now regardless of gay marriage, that's no secret.
What we need is some constitutional protections for us genetic homophobes.
We were born being disgusted by their perversion.
Great post!
Had not previously understood the bullet points of it!
Do you think we will see the Article 5 Convention?
What’s its status today ?
“...You want that right now regardless ...”
Absolutely.
If some extended reading on Article V appeals to you, you might find the following to be of interest.
Congress’ Present Duty to Call a Convention:
” What we need is some constitutional protections for us genetic homophobes.
We were born being disgusted by their perversion. “
Disgusting, vile, whatever you call it, rump rangers are at most 2% of the population, and right now, they are running roughshod over the entire country. We all know what happens when good men do nothing!
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