Supreme Court Questions Whether Marriage is a Federal Issue

What the Court says in questions does not necessarily reflect how they will rule.

However, two days’ of questioning concerning Proposition 8, which was heard yesterday and the federal Defense of Marriage Act, which was heard today, seems to form a consistent pattern. The justices have remarked twice now on the fact that marriage has always been a state issue.

I don’t know if that’s an indicator of how they will rule, but I sincerely hope so. I think it would be disastrous for the Court to wade into this explosive issue that the states are actually handling through the electoral process with a judicial fiat. There is no reason that I can see for the justices to silence the voice of the people with thunder from the Court.

No one knows, but questions for the justices themselves seem to echo this sentiment. Justice Kennedy questioned whether the Court should be hearing these cases at all. On the other hand, Justice Gader-Ginsberg commented that DOMA reduced gay marriages to “skim milk” marriages.

I honestly don’t know what a “skim milk” marriage would be, but I assume that the question was meant to support gay marriage. I could be wrong, but that’s my guess.

From the Wall Street Journal:

By EVAN PEREZ, BRENT KENDALL and JESS BRAVIN

WASHINGTON—Justice Anthony Kennedy on Wednesday questioned whether the federal government has the right to define marriage, a role traditionally reserved for states, in the second day of Supreme Court arguments on gay marriage.

The comments by Justice Kennedy, seen as holding a key vote on the court, came after several justices sharply challenged the Obama administration’s handling of the 1996 Defense of Marriage Act, which bars federal recognition of same-sex marriage. Some questioned whether the court should be hearing the case at all.

Former Solicitor General Walter Dellinger tells WSJ’s Jerry Seib that arguments in the Supreme Court suggest justices may be seeking a narrow ruling that clears the paths for state action on gay marriage, rather than a sweeping ruling to settle the issue.

The arguments concluded shortly past noon Wednesday, a day after the justices heard a case on California’s gay-marriage ban.

Former Solicitor General Paul Clement, defending the 1996 federal law, said it merely defines marriage for the purposes of the federal government and doesn’t bind states, regardless of whether they want to approve gay marriage.

Justice Kennedy, however, jumped to express concerns with that argument, questioning whether the federal government was intruding on the states’ territory. He said the Defense of Marriage Act ran the risk of conflicting with states’ role in defining marriage.

Liberal justices joined Justice Kennedy in questioning the law. Justice Elena Kagan said it raised red flags, while Justice Ruth Bader Ginsburg said the federal law diminished same-sex marriages to “skim milk” marriages. (Read more here.)

 

Tea Leaves and Goat’s Entrails: Guessing What the Supremes Will Do About Gay Marriage

I’ve read that the ancients used to slaughter a goat and study its entrails to try to predict the future. Others made tea and studied how the tea leaves settled to the bottom of the cup for the same purpose.

We all want to know what’s going to happen. We’re smart enough to anticipate, but not prescient enough to know. This human conundrum has kept fortune tellers and sooth sayers of one sort or the other in business for all of human history.

I’m telling you this as a caution. What observers of the Supreme Court think they see in the twitch of a judicial eyebrow or rise of a voice at the end of a question may, in reality, be nothing more than a tic or a frog in the throat. Ditto for the questions the Justices ask. They ask questions for their own reasons, or sometimes I’m sure, for the other justices’ needs. Questions, facial expressions and tones of voice do not Supreme Court rulings make.

Having cautioned you — and myself — with all this, I have to admit that what the press is saying about the Supreme Court hearings on Prop 8 today seems to reflect what I’ve been saying all along: Do they really want to jump in there and take the authority to make this decision on themselves? Would they be pushing the country over a cliff? Wouldn’t it be wiser, more honest, and frankly, more in keeping with the Constitutional authority vested in the Court, to let the people continue to work this out through the electoral process?

After all, it is working. 

Tomorrow, the Court will hear arguments on the Defense of Marriage Act. While DOMA is important, Proposition 8 is the big one. The reason I say that is because Prop 8 is the question that opens the door for the Court to take the powers which have heretofore been vested in the states onto itself. 

These decisions, and the possible fall-out from them, hang like the Sword of Damocles over this nation. Will the Court be wise and let the people speak, or will it be foolish and thrust this country over the culture war cliff altogether?

From the Chicago Tribune:

It was the first of two days of argument. On Wednesday, the court will consider the 1996 federal Defense of Marriage Act (DOMA), which denies federal benefits to married same-sex couples. Rulings in both cases are expected by the end of June.

The narrower DOMA case does not give the court the same opportunity to issue a broad ruling because the case relates only to a federal law that limits the definition of marriage to opposite-sex couples for the purposes of federal benefits.

Only the California Proposition 8 case gave the court the option of finding a constitutional right for same-sex couples to marry. Polls show growing support among Americans for gay marriage.

But during the argument, Justice Anthony Kennedy, who is considered a swing vote, raised concerns about the court entering “uncharted waters” on an issue that divides the states.

Kennedy even raised the prospect of the court dismissing the case, a relatively unusual move that would leave intact a federal appeals court ruling that had earlier struck down the California law, known as Proposition 8.

In a similar vein, Justice Samuel Alito also urged caution, noting that gay marriage, as a concept, is “newer than cellphones and the Internet.”

None of the justices indicated support for the Obama administration’s favored solution, which would strike down Proposition 8 and require the eight states that already recognize civil unions or domestic partnerships to allow gays and lesbians to marry. (Read more.) 

March for Marriage Tomorrow: Go if You Can. Pray if You Can’t.

The March for Marriage in Washington DC is tomorrow. Go if you can, pray if you can’t. 

For information about the march go here.

The United States Conference of Catholic bishops has issued a call for prayer and fasting for marriage. They also encourage Catholics to attend the March for Marriage tomorrow.

This video discusses what’s at stake.

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Holy Week, March for Marriage and Two Days with the Supremes

Priests processing for chrism mass

Priests processing for Chrism Mass

This is Holy Week.

It is also the week in which the United States Supreme Court will hear arguments on Proposition 8 and DOMA. The potential is there for a major change in the way American law defines marriage. This could have far-reaching effects which none of us can predict for foresee.

What better week to issue a call to prayer than Holy Week? Tuesday is the day we have the Chrism Mass. Priests renew their vows at this mass and the holy oils which will be used throughout the upcoming year are blessed. It’s a beautiful mass and I urge anyone who can to attend.

Blessing of the oil

Blessing the oil

History is coming at us so fast it’s hard to keep up. But we need to remember that this week, above all weeks, is a time for extra prayer and penance. I don’t want to make too much of it, but it seems poignant that so many points of history are converging on this one week. Proponents of traditional marriage are also staging a march in Washington, DC on Tuesday. 

The cross, which defines this week and the life of the world, is not just a point of history. It is history. The cross is the fulcrum of all history. There was the world before the cross and the world after it, which is to say that there was the world without hope and the world without despair.  Despair is impossible to anyone who understands the power of the cross.

We suffer in this life. We experience loss, setbacks, pain, loneliness, failure and grief. But we are never without hope because our hope is in the One who died for us on Calvary.

We need to pray this week, and not just for ourselves and our families, but for all the world that this light of Christ will shine in the darkness of the human heart everywhere.

This article, by our brothers and sisters at The Baptist Press, has details of the upcoming arguments before the Supreme Court:

NASHVILLE (BP) — On Tuesday and Wednesday, the United States Supreme Court will hear arguments in two cases regarding the issue of same-sex marriage. Few issues rise to this level of importance. 

These two cases will do much to answer the question for how marriage is going to be viewed in the United States for the foreseeable future. On Tuesday, the court will hear arguments in Hollingsworth v. Perry (Prop. 8). In this case, the court is being asked to decide the fate of Proposition 8 in California. At stake is whether or not the people of California can define marriage in their constitution as only the union of one man and one woman. In a worst-case scenario in deciding Hollingsworth, the court could rule unconstitutional the definition of marriage as only the union of one man and one woman, repudiating two and a quarter centuries of American jurisprudence in which marriage has been defined and regulated by each state, not the federal courts. Every state that has passed such laws would be affected. It would also be going against several millennia of the Judeo-Christian definition of marriage.

On Wednesday, the court will hear arguments in United States v. Windsor. That case deals with the constitutionality of section three of the Defense of Marriage Act (DOMA). The Windsor case creates the possibility that the court could overturn DOMA in its entirety. DOMA is important at many levels. For one, it protects states that do not support same-sex marriage from being required to recognize same-sex marriages that have been performed in states where the practice is legal. For another, it provides a standard definition of marriage for all federal programs, assuring that only heterosexual marriage is recognized across all federal government programs. It also provides protections for federal workers from being forced to violate their consciences regarding marriage. If DOMA is overturned, military chaplains will be especially vulnerable to pressures to accommodate an expanded definition of marriage in their ministries. (Read the rest here.) 

Roe and Gay Marriage: Will the Court Repeat Itself?

Pro life march

“You should be very hesitant about shutting down a political debate.”

This statement is directed at the United States Supreme Court. It echoes something I’ve written about repeatedly here on Public Catholic: I think that it would be a mistake that would harm the country for the Supreme Court to issue a sweeping ruling about gay marriage.

My reason is not based on the fact that I support traditional marriage. It is based on the tragedy of Roe v Wade. The states were debating the issue of abortion at the time Roe v Wade was issued. Some states were beginning to allow abortion in a broad range of circumstances, others were not. Some, such as New York, had passed laws allowing a broader availability of abortion and were considering narrowing what they had done. 

Komen planned parenthood story body

All this was part of the natural process of the way our Republic works. It was contentious, but it was also healthy. When the Supreme Court stepped in and took the question out of the states’ hands, it created a culture war that has gone on for 40 years and that shows no signs of abating. It also created a social situation which gave rise to direct attacks on our freedoms under the Constitution such as the HHS Mandate. 

Gay marriage is in a similar situation as abortion was before Roe. It is gaining public acceptance. Laws in several states are beginning to reflect this public acceptance. 

However, I think that if the Court steps in with a broad ruling, it will create a situation similar to the one Roe did. The country is already greatly damaged by the culture war Roe created. This damage is on-going and, in many ways, getting worse. If the Court adds gay marriage to this situation it will create God only knows what kind of tragedy for this country. 

I’ve read that Supeme Court Justice Ruth Bader Gingsberg feels the Court should have overturned the Texas law that was being challenged in Roe and left the other laws intact. I think she sees the problem, but not the solution. The Court should have remanded the issue of abortion back to the states. Period. Which is what they should do with gay marriage.

Notice I do not say that I think they should rule that marriage is between one man and one woman. They should refer the issue to the states, and let the system work. 

Let the people speak. 

It’s that simple. 

Here is a discussion of what I’ve been talking about from — of all places — the New York Times. It says in part:

 

WASHINGTON — When the Supreme Court hears a pair of cases on same-sex marriage on Tuesday and Wednesday, the justices will be working in the shadow of a 40-year-old decision on another subject entirely: Roe v. Wade, the 1973 ruling that established a constitutional right to abortion.

Judges, lawyers and scholars have drawn varying lessons from that decision, with some saying that it was needlessly rash and created a culture war.

Justice Ruth Bader Ginsburg, a liberal and a champion of women’s rights, has long harbored doubts about the ruling.

“It’s not that the judgment was wrong, but it moved too far, too fast,” she said last year at Columbia Law School.

Briefs from opponents of same-sex marriage, including one from 17 states, are studded with references to the aftermath of the abortion decision and to Justice Ginsburg’s critiques of it. They say the lesson from the Roe decision is that states should be allowed to work out delicate matters like abortion and same-sex marriage for themselves.

“They thought they were resolving a contentious issue by taking it out of the political process but ended up perpetuating it,” John C. Eastman, the chairman of the National Organization for Marriage and a law professor at Chapman University, said of the justices who decided the abortion case. “The lesson they should draw is that when you are moving beyond the clear command of the Constitution, you should be very hesitant about shutting down a political debate.” (Read the rest here.) 

Military Under Fire: How Would the Repeal of DOMA and Gay Marriage Affect Military Chaplains?

How would the repeal of DOMA and the legalization affect military chaplains?

When you consider this president’s previous attacks on religious freedom, that is a sobering question.

This video from the Marriage Anti-Defamation Alliance discusses these questions.

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Marriage March

Obama Asks Court to Overturn Defense of Marriage Act

President Obama weighed in with the Supreme Court today.

He filed an amicus brief asking the court to overturn the federal Defense of Marriage Act. The Federal Defense of Marriage Act (DOMA) of 1996 denies federal recognition of gay marriages and gives each state the right to refuse recognition of same-sex marriage licenses issued by other states. The act does not prohibit states from allowing gay marriages, neither does it obligate states to recognize the gay marriages from other states.

If the court overturns this act, it would make a muddle of marriage laws within and among the states.

Let me try to explain:

Right now, Oklahoma does not have a law allowing same-sex marriage. In fact, Oklahoma has an amendment to the state constitution which defines marriage as between one man and one woman.

If our neighboring state of Texas passes a law redefining marriage as between someone other than a man and a woman, the Federal Defense of Marriage Act would protect Oklahoma’s current law. Oklahoma would not be obliged to honor Texas’ law.

If this act is overturned by the Supreme Court, the question of what Oklahoma must do in this situation would be up in the air. Unless, of course, the Court follows writes its own statutes (calling them Constitutional interpretations) to enforce its own decision. This is what the Court did with Roe v Wade and subsequent rulings on abortion.

The other effect of overturning DOMA would be that it would allow the federal government to put itself in the marriage regulation business. From what I have seen of this president, you’d better get hold of yourself if this happens, because it’s going to be sweeping, heavy-handed and against the religious freedom of practicing Christians and Christian churches.

A FoxNews article discussing Obama’s brief to the Supreme Court on Doma says in part:

The Obama administration is asking the Supreme Court to strike down the federal law defining marriage as a union between only a man and a woman.
The request regarding the 1996 Defense of Marriage Act was made Friday in a brief by Solicitor General Donald Verrilli that argues the law is unconstitutional because it violates “the fundamental guarantee of equal protection.”
The high court is set to hear two cases next month on the issue: the constitutional challenge on Proposition 8, the 2008 California that allowed same-sex marriages in the state that two years later was overturned, and United States v. Windsor, which challenges DOMA.
Edith Windsor, a California resident, was married to her female partner in Canada in 2007 but was required to pay roughly $360,000 in federal estate taxes because the marriage is not recognized under DOMA.
The law “denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples,” Verrilli’s brief in part states.
House Republicans also purportedly filed a brief Friday, arguing for the right to defend DOMA.

Read more: http://www.foxnews.com/politics/2013/02/23/obama-considers-weighing-in-on-gay-marriage-case/#ixzz2Lk7tlaUf

If you wish to read the President’s brief to the Supreme Court against DOMA, go here.

The Supreme Court Should Leave Marriage Alone

Same-sex marriage is a compelling issue for many people on both sides of the question. Public support for traditional marriage eroded rapidly in the past two years, while nationwide support for same-sex marriage is at an all-time high.

For the first time, several states have passed voter referendums allowing same sex marriage, politicians are moving to endorse same-sex marriage and there’s even talk about whether or not conservative Christians and the Republican Party should abandon opposition to it.

Meanwhile, lower courts have struck down the federal Defense of Marriage Act and Proposition 8, both of which were designed to protect traditional marriage.

It is at this juncture that the United States Supreme Court has announced that it will hear challenges to these lower court rulings on DOMA and Proposition 8. Since lower courts had struck down the two laws, the Supreme Court could have allowed those rulings to stand by simply not hearing the challenges. For this reason, many people who favor traditional marriage, including those quoted in the CNA/EWTN article excerpted below, are hopeful about what the eventual Supreme Court ruling might mean. At the same time, supporters of same-sex marriage are voicing concerns that the Supreme Court might overturn lower court rulings and let the laws stand.

I believe it would be a mistake for the Supreme Court to step in at this juncture and federalize marriage. I also think it would be a mistake to define homosexual people as a protected class under the 14th Amendment. I would have this opinion even if I supported same-sex marriage.

It appears to me that the people of this country are in the process of working through a decision on this issue of their own and they are using the ballot box to do it. Even though I do not support same-sex marriage, I know that the voters in the states who legalized it this fall were acting within their rights to do so. I also believe that this is almost always the best way for social change to come about.

My answer to the question of defining homosexual people as a protected class of citizens under the 14th Amendment, is that I do not think this is necessary. Discrimination against homosexuals is rapidly going away without this drastic measure and all its unintended consequences.

One of the most damaging decisions the Supreme Court ever made was in a situation analogous to this one. Roe v Wade came at a time when the various states were liberalizing their abortion laws and public support for legal abortion was on the ascendant. By stepping in and federalizing something that had always been under the control of the states, the Court stopped this normal Democratic process in mid act. What happened instead is that the Court, rather than ending the discussion, radicalized it and set this country on a destructive course of increasingly polarized public debate and politics which continues to this day.

Of course, my opinion about what the Court should do doesn’t mean a thing, just as the opinions of both those who favor same-sex marriage and those who oppose it don’t mean a thing. The question about these two laws is now in the hands of seven people and they can do pretty much whatever they want with it. The Court has the freedom to rule in a narrow fashion that only affects these two statutes, or it can make a whole new Constitutional definition of marriage in whatever fashion four of these seven people want.

We the people have very little to say about what happens at the Supreme Court. And that is why I think that everyone on both sides of this debate should hope that they don’t go off on a law-making binge. I hope that they rule narrowly instead.

The CNA/EWTN article discussing reactions of traditional marriage supporters to the Court’s decision to hear these two cases reads in part:

Washington D.C., Dec 7, 2012 / 04:13 pm (CNA/EWTN News).- Supporters of marriage and family welcomed the Supreme Court’s announcement that it will review both state and federal cases about the definition of marriage in the coming months.

“The U.S. Supreme Court’s decision to hear these cases is a significant moment for our nation,” said Archbishop Salvatore J. Cordileone of San Francisco, who leads the U.S. bishops’ Subcommittee for the Promotion and Defense of Marriage.

“Marriage is the foundation of a just society, as it protects the most vulnerable among us, children,” he said in a Dec. 7 statement. “It is the only institution that unites children with their mothers and fathers together.”

The archbishop said that he is praying that the court will be “guided by truth and justice” in order to affirm the true meaning and purpose of marriage, written in human nature as the union of one man and one woman.

On Dec. 7, the U.S. Supreme Court announced that it will hear two cases regarding the definition of marriage in the next year.

A federal case, Windsor v. United States, involves a challenge to the Defense of Marriage Act, a 1996 law passed with overwhelming bilateral support in Congress and signed by President Bill Clinton. The case challenges a section of the law that defines marriage as the union of one man and one woman for federal policies.

A second case, Hollingsworth v. Perry, concerns Proposition 8, a constitutional amendment adopted by California voters in 2008 to protect the definition of marriage as the union of one man and one woman after the state Supreme Court ruled that gay unions must be recognized as marriages.

Critics of the laws argue that they amount to unjust discrimination against gay couples and an unconstitutional violation of the equal protection clause. Proponents contend that the government has a legitimate interest in recognizing the union of man and woman because it is the fundamental building block of society and plays a critical role in bringing up the next generation.

While lower courts have struck down both laws, marriage advocates say they see hope in a Supreme Court ruling. (Read more here.)

Supreme Court to Hear Gay Marriage Cases

The United States Supreme Court announced earlier today that it will hear two cases concerning gay marriage.

Whenever a case makes its way to the Supreme Court, the court decides whether or not it will hear the case or let the lower court ruling stand. In these two cases concerning the federal Defense of Marriage Act and Proposition 8, which was a ban on gay marriage that passed in California a few years ago, the Supreme Court has decided that it will hold hearings on the cases and issue a ruling of its own.

While many people are already second-guessing what the Court might do regarding these two laws, I don’t think that’s particularly useful. The Court has always been unpredictable and could be this time, as well. We will have to wait and see what ruling they hand down later this year.

A Yahoo News article concerning today’s announcement reads in part:

The Supreme Court announced Friday that it will decide two major gay marriage cases next year that could have a sweeping impact on the rights of same-sex couples to wed. The cases, which likely won’t be decided until June, mark the first time the justices will consider arguments for and against same-sex marriage.

The court will review California’s gay marriage ban, which passed in a 2008 ballot initiative months after the California’s high court had legalized same sex unions and thousands of gay Californians had already tied the knot. Two federal courts have struck down Prop. 8 as discriminatory, leaving the Supreme Court to render a final judgment.

The justices will also hear a challenge to the federal Defense of Marriage Act, a law passed under President Bill Clinton that prevents the federal government from recognizing gay marriages. Windsor v. United States was brought by Edith Windsor, a resident of New York who paid $363,000 in estate taxes after her wife died because the federal government did not recognize their marriage. New York is one of nine states (and the District of Columbia) where gay marriage is legal, so Windsor argues that the federal government is discriminating against her by not recognizing her state-sanctioned marriage.

The Obama administration decided last year to no longer defend the Defense of Marriage Act, so Congress has hired outside counsel to argue on behalf of the law. Recently, two federal appeals courts had struck down the law as unconstitutional, virtually requiring the Supreme Court to take the case to settle the dispute between the courts and Congress. (Read more here.)

Supreme Court Will Decide Whether to Hear Gay Marriage Cases Tomorrow

WASHINGTON (BP) — The nine justices of the U.S. Supreme Court will meet behind closed doors Friday to decide whether to take up several cases that could lead to the legalization of gay marriage in all 50 states.

The public won’t find out what they decided for several days — as early as Monday — but Friday’s meeting is significant enough that both sides in the cultural debate are guessing what will happen. If the court takes up the cases, it could end up being the “Roe v. Wade” of gay marriage.

At issue are two laws: a federal law known as the Defense of Marriage Act (DOMA) and a California constitutional amendment known as Proposition 8.

Technically, only one section of DOMA is before the court — the section that defines marriage in federal law as being between one man and one woman. But the legal arguments the Obama administration’s Justice Department attorneys are using to oppose that section could be used to overturn the entire law, conservative attorneys say. That other section gives states the option of not recognizing gay marriage laws from other states. Courts have been split on DOMA, although the cases before the high court overturned the federal section at issue. The Republican-controlled House of Representatives is defending DOMA in court.

California Prop 8 was approved by voters in 2008 and defines marriage as between a man and a woman. The Ninth Circuit Court of Appeals affirmed a lower court ruling that struck it down. If the Supreme Court takes the Prop 8 case, it could do a number of things, including upholding Prop 8 or — in what would be a nightmare for Christian legal groups and evangelicals — reversing laws in any state that define marriage as between a man and a woman. The court also could choose not to take the Prop 8 case, a decision which would legalize gay marriage in California. (Read more here.)

Compiled by Michael Foust, associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email (baptistpress.com/SubscribeBP.asp).