Stopping Same-Sex Marriage

Steven Mosher
By Joseph A. D'Agostino
PRI Weekly Briefing
11 February 2005
Vol. 7 / No. 6
Reproduced with Permission

Can the unprecedented innovation of same-sex "marriage" be stopped? By one method only: The replacement of leftist anti-democratic Supreme Court justices with ones who respect the Constitution and republican self-government.

In this country, the vast majority of people oppose same-sex marriage. Majorities of both houses of Congress oppose it as does our President. No state legislature has approved it or seems likely to. Every ballot initiative opposing it has passed with a substantial margin of victory, even in liberal blue states. Since the United States of America and each one of her states officially have republican forms of government, how can this novel legal privilege be established in the face of these facts?

Last week, a New York judge reminded us that we do not live in a republic, at least not when the cultural revolution promoted by anti-life and anti-family elites is concerned. State Supreme Court Justice Doris Ling-Cohan decided that somehow, the state constitution of New York required same-sex marriage. The case is being appealed (the New York Supreme Court isn't supreme). It resembles the case in which the Massachusetts Supreme Court decided to force same-sex marriage on that state last year.

Nothing in the U.S. Constitution forbids same-sex marriage. However, such state court decisions do invite federal intervention since these court decisions do violate the Constitution, which says in Article IV, Section 4, "The United States shall guarantee to every State in this Union a Republican Form of Government. . . ." There are different ways to define "republic," but I would think that a republic must be minimally defined here as a state in which laws are decided upon by elected representatives of the people. Given the U.S. Supreme Court's history of changing laws at will, most obviously in its completely unconstitutional Roe v. Wade (1973) decision, it is unlikely that any federal court challenge to anti-republican state judges' same-sex marriage decisions would succeed.

At least there is some resistance in the United States to such tyranny. Canada's parliament will apparently give in to decisions made by courts there and extend marriage benefits to same-sex couples later this year. But how can the courts here be resisted?

President Bush could simply refuse to enforce any federal court decision imposing same-sex marriage on the country, which would be in accord with his oath to uphold the Constitution. Presidents have refused to enforce court decisions in the past. State governors are similarly empowered when it comes to state courts. It has been a long time since a President has refused to enforce a major federal court decision and it seems unlikely that Bush would have the courage to do what so many of his modern predecessors did not.

Congressional Republican leaders stand ready to bring the Marriage Protection Amendment, which would define marriage as between one man and one woman, to the floor of both houses. President Bush supports this amendment to the Constitution, and it seems that a majority of both houses now do as well. Yet the chances of its passage are low. A constitutional amendment requires a two-thirds vote of both houses, and under the present political paradigm, 67 senators would never vote for such an amendment. Perhaps a political earthquake of enormous magnitude will change that paradigm, but as affairs now stand, there will always be enough socially liberal senators to stop any such amendment.

Another possibility could be removing the federal courts' jurisdiction over state marriage laws, which would at least isolate same-sex marriage state-by-state. The 1996 Defense of Marriage Act (DOMA) already tries to prevent states from having to recognize same-sex marriages performed in other states, but a federal judge could easily declare DOMA unconstitutional any day-and under the U.S. Constitution's clause requiring states to grant "full faith and credit" to the legal acts of other states, that judge could be right based on legal precedents.

Last year, the House passed the Marriage Protection Act of 2004 sponsored by Rep. John Hostettler (R.-Ind.). The Senate didn't. Hostettler's bill would remove federal courts' jurisdiction over DOMA, saying, "No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section." Congress restricts the courts' jurisdiction all the time. But same-sex marriage is considered a fundamental civil rights question by America's rulers, who clearly are intent on imposing same-sex marriage by any means necessary. Under Hostettler's bill, the Supreme Court would still have original jurisdiction over lawsuits against DOMA-and in any case, the federal courts using the 14th Amendment's equal protection clause could easily declare both it and DOMA magically "unconstitutional," a word that has come to mean "anything fashionable liberals do not like."

That leaves Supreme Court appointments as the most plausible way to stop same-sex marriage. A Supreme Court decision on the question is likely still years away. Some people may doubt that even the current court would impose same-sex marriage on the country, but Justice Antonin Scalia has already warned us in his dissent to Lawrence v. Texas (2002), in which the court invented that criminalization of sodomy violated the Constitution: "One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is 'an invitation to subject homosexual persons to discrimination both in the public and in the private spheres,'" wrote Scalia. "It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. . . . [T]he Court says that the present case 'does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.' Do not believe it.

"More illuminating than this bald, un-reasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to 'personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,' and then declares that '[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.'"

If left-wing anti-republican members of the Supreme Court pass away or retire soon enough and pro-family Americans do enough to pressure President Bush into appointing justices who support the Constitution, same-sex marriage can be stopped. Otherwise, it likely cannot.