Tale of Two States Reveals Leadership to Restore Families

Does State leadership make a difference to family policy?  Compare Oregon and North Dakota.

When the Attorney General and Governor of Oregon both abandoned their sworn duty to defend the law of the State, the National Organization for Marriage (https://www.nationformarriage.org/) defended the State’s constitutional marriage amendment on behalf of Oregon State citizens, but the Ninth Circuit denied the motion to intervene filed on behalf of state citizens who did not wish to be named publicly, fearing reprisal. While there is well-established precedent for this substitution of representation under the Supreme Court's ruling in NAACP v. Alabama allowing membership organizations to pursue the interests of their members when there are substantial hurdles to the members litigating in their own name, such as the real threats of harassment and violence that have been manifested elsewhere in the country around the marriage issue, the Ninth Circuit did not agree and denied the motion based on lack of standing, similar to Perry. (To learn more about that case download the article at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093.)

Citizens are not being represented by their elected officials when they refuse to support an issue that is perceived to run counter to popular culture. This challenges the entire validity and purpose of the referendum process — the truest form of democracy in America.  An appeal may be pending, as the National Organization for Marriage is exploring whether to file a petition for rehearing en banc with the full Ninth Circuit or to seek review in the Supreme Court of the United States itself.

The sovereign decision of the people of Oregon — voting in 2006 to define marriage as the union of one man and one woman — went entirely undefended by the elected officials of Oregon, an abdication of duty that resulted in the long-standing understanding of marriage in Oregon being rewritten by a single federal court judge.

The policy fight over the definition of marriage is being altered by unelected federal judges, undefended by elected representatives, over the objection of the majority of citizens who voted for those laws. 

In contrast to Oregon is North Dakota, in Ramsay v. Dalrymple. Like so many other states (such as VA, NC, UT), North Dakota's marriage amendment defining marriage as the union of one man and one woman is under attack in federal court, but the actions of the Governor and Attorney General in defense of the law have been exemplary, filing a response to the plaintiffs' motion for summary judgment which outlines many of the critical and compelling arguments in defense of marriage:

1.     Conjugal marriage is not consent-only marriage. ND argues: “This case involves two mutually exclusive and profoundly different marriage institutions, marriage institutions that serve separate, distinct, and conflicting societal purposes." (See Girgis, George, Anderson, What is Marriage? at http://www.harvard-jlpp.com/wp-content/uploads/2013/10/GeorgeFinal.pdf ). "North Dakota can have only one social institution denominated 'marriage.' It cannot simultaneously provide the historically proven valuable social benefits of man-woman marriage and the asserted benefits of the new genderless marriage. One necessarily displaces or precludes the other."

2.     States have the power to define marriage. “In cases spanning three centuries, the Supreme Court has emphasized that '[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the United States.'" Furthermore, nothing in federal constitutional law requires North Dakota to recognize same-sex marriages performed in other states, as the Defense of Marriage Act (DOMA) sections 1, 2, and 4 remain law (Windsor struck down section 3 only; Section Two clearly says states do NOT have to recognize same-sex marriages performed in other states).  To understand this argument better read "Marriage, State Domestic Regulations Power and Family Strength, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427462.

3.     State marriage law does not violate due process or equal protection requirements of the 14th Amendment. “The due process clause of the Fourteenth Amendment is not a charter for restructuring [marriage] by judicial legislation." Citing Baker v. Nelson, "Windsor also makes no mention of Baker and certainly does not inform lower courts that they are no longer bound by Baker. Windsor dealt with the constitutionality of a federal law defining marriage, not a state law.” To better understand these arguments read more on this at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093.

Virginia’s McQuigg v. Bostic, is also, much like Oregon, refused a defense of the state's laws by the state's representatives, thereby requiring a defense from private legal sources. For more on that case see http://www.adfmedia.org/News/PRDetail/8974.

As these cases make their way up to the Supreme Court, the outcome will determine whether states can still regulate domestic relations law. The tale of two states reveals leadership - or a lack thereof - to advance family restoration.

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