07 Oct What Happened?
October 7, 2014
From the Desk of Laura Bunker
United Families is greatly disappointed that the U.S. Supreme Court refused to hear the marriage petition of Utah and four other states. Our world may have changed, but it has not ended. If ever there was a time to “keep calm and carry on,” this is it.
As United Families Utah Director, Rose Marie Murray advises, “let’s take the long view and try to see the big picture. Man-woman marriage is still the gold standard that creates the best outcomes for individuals, families and societies. It is a cause that needs our support more than ever.”
We can carry on by strengthening our own marriage, and teaching our families the importance of mothers and fathers. We can also carry on by improving our friendships and family relationships with those who have differing beliefs. We are all neighbors on this small blue planet, and we should find ways to live together in civility and kindness, even if we disagree on the nature of marriage.
Today’s helpful analysis by UFI board member Bill Duncan describes what happened to the legal recognition of marriage, and clarifies, “the harder and more important work we must take on is to change the culture regarding marriage, like the pro-life movement has done with the protection of unborn children, so that legal changes to restore the child-centered understanding of marriage become possible again.”
In the months and years to come, each of us will have opportunities to help promote a “marriage culture” in our homes, neighborhoods and communities. As Bill Duncan reminds us, “In taking on that task, we will have the powerful ally of reality.”
In other words, we can carry on with confidence.
United Families International, President
What Happened? The Supreme Court Refuses to Hear the Marriage Cases
By William C. Duncan
Yesterday, the U.S. Supreme Court rejected the petitions of Utah and four other states to review lower court decisions which had ruled, implausibly, that the 14th Amendment required every state to redefine marriage to include same-sex couples.
Children are entitled to a married mother and father. Since 1998, the voters of 31 states have enacted amendments to their state constitutions to protect this entitlement by preserving marriage as the union of a husband and wife. In 2008, after California joined those states, legal activists decided to use the federal court system to overturn the amendments. They were successful in getting California’s law changed but only because the state’s executive officials refused to defend the amendment.
In the summer of 2013, after the Supreme Court struck down the federal Defense of Marriage Act, a litigation frenzy began which eventually resulted in lawsuit challenging the marriage laws of every state that had not already redefined marriage by court order or legislation. They were successful in four states where attorneys general did their part to facilitate an adverse court decision.
The majority of the states, however, actually defended the laws approved by their people. Utah was in some ways the leader of these states. Its law was the first of the pack to be struck down by a federal judge (just before Christmas in 2013) and the first to petition the Supreme Court for review.
It was widely believed the Court would accept Utah’s petitions and perhaps others so they could settle the legal dispute they themselves had created by seeming to endorse both the idea that states should be free to enact their own marriage laws and the position that retaining the virtually universal understanding of marriage might be unconstitutional.
That turned out not to be true when the Supreme Court decided yesterday in a reckless decision not to correct the lower courts which had taken on themselves the power to create a new meaning of marriage that they felt should be binding on the states. The decision was reckless because it invites lower federal courts to stretch the law to accomplish policy ends that people of the states would not endorse when nothing in the Constitution actually requires such a result.
It’s important to note that the decision the Supreme Court’s inaction allowed to stand are radical both in reasoning and result. The Tenth and Fourth Circuits said that the Constitution protected an essentially unfettered “right” to requiring the states to endorse individuals’ understandings of marriage. The Seventh Circuit decision, riddled with unsupported empirical statements, and an entirely novel legal analysis held the people of Indiana and Wisconsin had acted irrationally and out or hatred in retaining marriage laws. The courts in these circuits are now free to adopt these broad theories to any new case to come before them.
Those who care about preserving the unique and uniquely beneficial contributions of marriage as the union of a man and woman face a challenging future. The Court’s indecision still allows the five remaining federal Circuit courts to rule on the issue. At least one of these should have the integrity to push back against the idea that the Constitution licenses federal micromanaging of marriage laws.
If that happens, the Supreme Court could be forced to hear the issue to resolve the split between the different regions. Perhaps the majority of judges would rethink their willingness to allow a federal marriage policy that interferes with the self-determination of people in the states. Even then, much damage would be done as eleven states will now presumably have to treat marriage as the association of any two adults as a result of yesterday’s action.
So, the harder and more important work we must take on is to change the culture regarding marriage, like the pro-life movement has done with the protection of unborn children, so that legal changes to restore the child-centered understanding of marriage become possible again.
In taking on that task, we will have the powerful ally of reality. Men and women are not interchangeable, mothers and fathers are not disposable parts of a child’s life, children deserve a mother and father committed to each other and to the child their union alone may produce.
William C. Duncan is the director of the Marriage Law Foundation and of the Sutherland Institute’s Center for Family and Society. He was previously acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor. He has published numerous articles on constitutional and family law issues in a variety of legal journals. Mr. Duncan is a frequently requested author and speaker. Today’s article was originally requested by Meridian Magazine, an online world-wide magazine, and republished with permission.