How Five Justices Made Marriage Unconstitutional

Guest Post By Political Sphere

The landmark decision of Obergefell v. Hodges redefined the governmental definition of “marriage” throughout the United States, ruling that all states must now recognize and promote “marriage” between two adults of the same sex as equal to marriage as it “has existed for centuries and millennia.”^[i] But redefining marriage so fundamentally produces a serious unintended consequence. With the stroke of a pen, five justices on the Supreme Court of the United States have rendered unconstitutional the government recognition of "the foundation ... of society, without which there would be neither civilization nor progress."^[ii]

Under the equal protection clause of the 14th amendment, when a state statute seeks to classify people, the classification is presumed to be valid, but will only be sustained if the classification drawn by the statute is rationally related to a legitimate government interest.^[iii] States are responsible for developing and implementing marriage laws, and the whole point of marriage laws is to classify certain types of relationships. Marriage laws grant rights and responsibilities to spouses that are not granted equally to live-in girlfriends/boyfriends or to polyamorous relationships. These rights and responsibilities bestowed upon married couples show that the government considers marital relationships as superior over other types of relationships in the eyes of society. Therefore, under the 14th amendment, the classification must be rationally related to a legitimate government interest.

What then is the legitimate government interest in classifying some people as married and others as unmarried? The majority opinion sets forth four principles and traditions explaining why marriage is fundamental under the constitution. While these are intended to show why the definition of marriage should be fundamentally changed to include homosexual unions, perhaps these will offer insight into the legitimate government interest supporting government recognition of this cornerstone of society.

The first premise is that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”^[iv] In using this premise to justify fundamentally redefining marriage, the majority explains that the personal choice of who to marry is protected from government involvement just as other intimate choices that follow the Roe v. Wade line of cases.^[v] Therefore, this premise does not provide us with a legitimate government interest in classifying people as married or not, but rather a reason that the government is prohibited, or at least limited, from intruding on marriage.

The second premise is that the right to marry “supports a two-person union unlike any other in its importance to the committed individuals.”^[vi] The majority elaborates that “the right to marry dignifies couples who 'wish to define themselves by their commitment to each other.’”^[vii] And continues, “Marriage responds to the universal fear that a lonely person might call out to find no one there.”^[viii] While a government may have an interest in ensuring that people are more reliant on those they directly associate with than on the government when there are rough patches in their life, there must also be a rational relationship to this interest when classifying one set of roommates over another. So there must still be something more that provides the legitimate government interest for the classification of marriage over other relationships.

The third premise is that “It safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”^[ix] This is where we finally get a reason for the classification which is rationally related to a legitimate government interest.

The Chief Justice explains more fully in his dissent:

The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the [biological] mother and [biological] father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible does not solve.” J.Q. Wilson, The Marriage Problem 41 (2002).^[x]

Therefore, the government does have an interest in classifying marriage, but it is related to the procreation process. Introductory biology teaches that all organisms live, breed, and die. Thus, as a human race, we have a biologic requirement to procreate in order for our species to survive. Not only is procreation vital to the survival of the human race as a whole, but also to the individual state as a country which is declining in population is susceptible to being overthrown by more vibrant societies. Therefore, there is an interest for the government to encourage procreation in order to continue the state. And all of the rights and responsibilities associated with marriage appear to revolve around promoting procreation and the preference for biological parents to raise their children together.

But the majority states that “The constitutional marriage right has many aspects, of which childbearing is only one.”^{[xi] [xii]} So let us consider whether the final premise offers an additional rational basis, one that would also provide a rational basis for including a homosexual relationship.

The fourth premise is that tradition makes clear that marriage is a keystone of our social order.^[xiii] There are two problems with this premise. First, tradition is not a legitimate government interest that allows for classification. That is made clear by the equal protection clause of the fourteenth amendment. Traditionally, all people of color were treated as second-class citizens. But under the equal protection clause of the fourteenth amendment, that horrific tradition was abolished. Therefore, tradition is incapable of acting as a rational basis for a statutory classification under the equal protection clause.

The second problem is, while the definition of marriage has certainly had changes throughout the millennia it has existed, there has been only one common factor. Traditionally, marriage has always been limited to a union between man and woman. Even where polygamous marriage is and was allowed, all polygamous marriages have required at least one male and one female. As the Chief Justice noted in his dissent, both the majority opinion and the petitioners in the case had to concede that they are not aware of a single society which permitted homosexual “marriage” prior to 2001.^[xiv] Thus, tradition both cannot and should not be a rational basis for the classification of marriage as the Supreme Court has defined it.

In conclusion, the only rational basis for government recognition of the classification of marriage that may reasonably be argued is procreation and the raising of children by that child’s biological parents. By eliminating this requirement from the definition of marriage, the Court has eliminated the sole rational relation to a legitimate government interest in classifying people by marriage.

The Court has eliminated marriage as a government institution. Therefore, when a case arises where an official refuses to grant marriage licenses, as happened in Kentucky, that official should not be compelled to issue such licenses as they purport to classify people without any rational basis related to a legitimate government interest.

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^[i] See Obergefell v. Hodges, 576 U.S. ___ (2015) (p. 3-4 of the Majority opinion, p.4 Roberts Dissent).

^[ii] Id. at 16 of the majority opinion quoting Maynard v. Hill, 125 U.S. 190, 211 (1888).

^[iii] Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-40 (1985).

^[iv] Obergefell, majority opinion at 12

^[v] Id.

^[vi] Id. at 13

^[vii] Id. at 14 quoting Windsor v. U.S.

^[viii] Id.

^[ix] Id.

^[x] Id. at 5 of Roberts dissent.

^[xi] Id. at 16 of the majority opinion.

^[xii] The majority also states that “it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate.” However, until the Griswold v. Conn., Roe v. Wade, and Lawrence v. Tex. line of cases, the commitment to procreate was regularly required by the states. The capacity has always been presumed, through the fertile octogenarian rule which holds that every person is irrebuttably presumed fertile from birth until death.

^[xiii] Id.

^[xiv] Id. at 4 of Roberts dissent.

Duty to Resist

I’ve been thinking about what to write on this issue, because there may not be a single right path, and I’m in disagreement with a lot of good rule-of-law people. I’m watching with interest what the county clerk in Kentucky does. And I’m glad she’s taking a stand.

Rowan County, KY, Clerk Kim Davis goes to jail

photo made available by 

Carter County Detention CenterZUMA Press/Newscom, found here

Both sides can be right. I’m looking historically at Helmuth Hübener and friends, in WWII. I wrote about their moral dilemma in December 2013.

It was not policy for Mormons to be encouraged to rebel against their government, even under tyranny. But still they were taught the value of freedom and God-given rights. So it was a dilemma.

German Mormons were not condemned for fighting in the war, even if they believed their country was in the wrong; they were obliged to do as directed, and the blame would be on the hands of the nation’s leaders. However, if they could find ways to do good to their fellow man, or to find nonviolent ways to seek freedom, they were not forbidden by the Church. In other words, they were taught the principles and allowed to make their best decisions—just the same as today.

Hübener and friends didn’t have to do what they did. They could have been justified in just going along with the coercive government. But they chose to resist the evil. I admire them for that. I wrote,

The boys were right to act as they did, because the tyranny surrounding them was wrong. Nevertheless, they did commit treason in the eyes of the law, such as it was, and they acted with the full knowledge that they would face punishment if caught. It would not have been sinful to them to have followed their leaders’ advice, keep their heads down, and make no waves. It would not be a dilemma if there weren’t two competing positions. But since they were old enough to know their own conscience, and know what God was personally leading them to do, it was right for them to act.

Kim Davis, the Rowan County Clerk, in Kentucky, has refused to issue marriage licenses following the Supreme Court ruling in Obergefell v. Hodges. That was the same-sex “marriage” ruling, which resulted in the slim majority of unelected US Supreme Court justices throwing out the millennia-old definition of marriage and replacing it with something of their invention.

I am a supporter of the rule of law. That creates a dilemma when the “law” is created unjustly and illegally, and additionally goes against God’s law. In theory (actually, in the written Constitution, so in reality), only the legislative branch can create law. The judicial branch has no such power. So when SCOTUS invents a new definition of marriage and imposes it as law in all 50 states, the very idea is ridiculous. Except that it is happening.

However, government receives power from the consent of the governed. So if the people do not consent, the government lacks the power. I was hoping, in the wake of the erroneous decision, that many states would simply refuse to comply. As Douglas Wilson wrote,

If just ten governors treated Obergefell the same way Kim Davis is treating it, that entire unrighteous and despotic imposition would collapse and fall to the ground. And if they did so, they would not be sinning against the United States. Rather, they would be preventing the United States from sinning.

The end game here is not armed revolution. The end game is simply a refusal to cooperate with their revolution.

Every state that has a constitutional amendment defining marriage pitted state sovereignty against federal government overreach. The 10^th Amendment guarantees that state sovereignty is supreme on any issue not enumerated as a federal power.

In Ryan Anderson’s book Truth Overruled: The Future of Marriage and Religious Liberty, his first step in the battle we’re now in is to point out, clearly and consistently, that the ruling was a bad decision, with no relation to the actual Constitution. This was the approach taken by pro-life activists following the badly decided Roe v. Wade, which is showing progress in the direction of life more and more.

Quoting Ted Cruz this week: “In dissent, Chief Justice Roberts rightly observed that the Court’s marriage opinion has nothing to do with the Constitution. Justice Scalia observed that the Court’s opinion was so contrary to law that state and local officials would choose to defy it.”

There were temporary, brief refusals in various states, including Texas. But, with this singular exception of Kim Davis, everyone else seems to have succumbed to judges at various levels saying, “You have to do what I say.”

If we’re going to live in a country in which unlawful laws can be imposed by non-lawmaking branches of government, and abide by those laws, then what are we going to do to accommodate those who find those laws unrighteous?

I don’t say that Kim Davis’s way is the right way, or the only right way. If I understand the situation correctly, she has refused to issue any marriage licenses in her county since the SCOTUS ruling. The intent was to avoid the accusation that her office was discriminating based sexual orientation. She has also ordered her employees not to issue licenses. Her basis is that issuing the licenses violates her Christian faith. The reason she wouldn’t allow employees to issue licenses is that her name, as county clerk, is on each document, so that means she is actually approving the license, validating it.

There ought to be an accommodation for her. North Carolina pre-empted the problem. As Ryan Anderson describes it,

North Carolina provides a great example. The state legislature earlier this year passed a law that protects magistrates who object to performing solemnizing ceremonies for same-sex marriages and clerks who object to issuing same-sex marriage licenses. It also makes clear that no one can be denied a marriage license, but magistrates or clerks could recuse themselves from the process behind the scenes should they have sincere objections to same-sex marriage.

Again, it’s a win-win for everyone. No one loses anything.

Every state could act to offer such accommodations. As Illinois law professor Robin F. Wilson says, citizens may have a claim to receive certain “services from the state, but they do not necessarily have a claim to receive the service from a particular public servant.”

I can come up with a simple solution for Rowan County. Create a new document, without the clerk’s name on it, for any “marriage” to be licensed that the clerk does not want to validate. I was able to create a nice-looking diploma for my homeschooled children; I’m sure it wouldn’t be beyond the abilities of someone in the office. Allow someone else in the office to issue the license. Done. No more contempt of court. No more lines of marriage applicants being turned away.

Wait. While she’s been in jail the past few days, her office has issued licenses, and I understand they do not have her name on them (actually it's unclear whether the documents just lack her signature and approval, or whether her name was removed). Her lawyer, Mat Staver, points out that they aren’t worth the paper they’re printed on, because they were issued under the county clerk's authority, which she had not granted.

He’s right that they don’t include the imprimatur of the county clerk. But they’re not necessarily invalid for getting what the couples require. I think the issue could be resolved by printing the line of authority on the document:

“By the power granted to a majority of the Supreme Court of the United States to write laws defining marriage in the state of Kentucky, in the County of Rowan, this document ….”

And, like I said, make it pretty, so everyone is satisfied. Those who believe the Supreme Court has lawmaking power have a document that says so. And those who believe it does not, they have a document that says the document is only valid if the Supreme Court has such powers, which it does not. And the clerk does not have to spend time in jail for not having the court-prescribed opinion.

Kim Davis is an elected official. If she doesn’t give in, the legislature will have to remove her, going against the voters who elected her as well as the voters who defined marriage in the state. Or they can do the simple accommodation.

I wavered in my thinking through this issue when I read that Justice Scalia said she should do her job. “Justice Scalia explained why Kim Davis should issue marriage licenses to same-sex couples or find a new job” was the headline. But it turned out, that was just an opinion piece quoting Scalia’s 2002 book, in which he said judges who have a belief that there should be no death penalty, when it is the law of the land, should not be judges; they should not undermine the law by ruling according to their opinion. I see that as very different from someone who has an elected position, and then after the fact, through dubious judicial lawmaking, definitions are changed, thus changing the official's duties.

Are we prepared to say that everyone who still believes in the necessity for marriage to include a man and a woman should be prevented from serving in positions in which they are otherwise fully qualified?

At least Kim Davis is making us ask the question.

There are plenty of sources saying Kim Davis is in the wrong—all the mainstream (liberal) sources, and probably a majority of more conservative opinions. (I’m hoping son Political Sphere will follow up with his opinion, which thinks Davis’s lawyers could have come up with a better defense, and better advice for her. His opinion on the Obergefell ruling is one I haven’t seen anywhere else, and I find it compelling, but he’ll explain it better than I can.)

Nevertheless, some of us stand where I do. I’ve benefitted from reading several views on this subject, which I recommend:

·         Senator Ted Cruz’s Statement on the Arrest of Kentucky Clerk Kim Davis

·         Matt Walsh’s blog post “Kim Davis Broke an Illegitimate, Evil Law, and God Bless Her for It”

·         “In Which I Paint With Some Bright Yellows,” by Douglas Wilson 

·         “Kentucky Clerk Not Issuing Gay Marriage Licenses Causes Uproar. North Carolina Shows Better Way.” by Ryan T. Anderson 

·         Mark Levin show, linked at “Mark Levin DefendsKentucky Clerk: Supreme Court Is Nullifying the Rule of Law, Not Kim Davis”