The Federal Marriage Challenge of U.S. v. Windsor and Family Restoration

           Family restoration involves stabilizing marriage for the common good.  The single greatest influence that can be presented to the world on the issue of marriage is for each married person to personally live out marriage in all its God-ordained fullness and radiant beauty.  Laws generally reflect that influence of how citizens treat marriage, one way or the other.  Two generations of easy divorce, however, have weakened marriage, effectively making marriage expansion more acceptable.  United States v. Windsor, U.S., No. 12-307 (June 26, 2013), reflects efforts to expand marriage from its original design to accommodate changing cultural tides.

The Defense of Marriage Act (DOMA) was enacted by Congress in 1996 with two operative sections: Section 2 allows states to refuse to recognize same-sex marriages performed under the laws of other States, and Section 3 provided for a federal definition of "marriage" and "spouse" that reflected a legal union between a man and a woman.  Only Section 3 was challenged in United States v. Windsor, and Justice Kennedy writing for the five-justice majority (which included Kagan, Ginsburg, Sotomayor and Breyer J.J.) ruled that Section 3 of DOMA violated the due process and equal protection principles of the Fifth Amendment.

             The Windsor case actually involved the federal inheritance tax. A lesbian couple, married in Canada in 2008, resided in New York, which in 2009 recognized out of state same-sex marriage (and has since legalized it in 2010). When one of the women died, leaving her estate to her partner, Edith Windsor, because her same-sex marriage was not recognized under federal law (as defined by DOMA), Windsor had to pay estate taxes of over $300,000 on the transfer of the estate.  If their marriage had been recognized under federal law, Windsor could have taken the unlimited marital deduction and received the inheritance free of estate taxes (though estate tax would be due on the remaining estate upon her death).  I have previously researched and analyzed this case, and have published on it at the request of the Penn State Law Review.  That article is available for your review and downloading at the Social Science Research Network (SSRN).

            The ruling in Windsor declared Section 3 of DOMA, defining marriage for federal purposes, unconstitutional.  Because her marriage was recognized in her State of residence the Court reasoned it should be recognized for federal purposes as well.  Windsor will recover the estate taxes she paid, and same-sex couples who are legally married in their State of residence are now entitled to over 1100 federal benefits, rights, and protections. These collateral effects of marriage expansion have been apparent for some time, and I have previously discussed these in an article which is also available for review and downloading from the SSRN. It is still unclear what happens to those federal benefits when same-sex married couples move to a state that doesn't recognize their marriages.

            While the majority acknowledged that Congress sometimes must define marriage for federal purposes, it ruled that Congress could not "seek[] to injure the very class New York seeks to protect."  This is exceptional, in that no State, including New York, recognized same-sex marriage at the time DOMA was enacted by bipartisan majorities in both Houses of Congress and was signed into law by President Clinton.
 
            The Court struck down the part of the federal marriage law defining the institution of marriage as a union between one man and one woman for the purpose of interpreting and administering all federal laws and programs. Without Section 3, the federal government will not be able to define marriage for its own federal policies and federal laws; it must accept whatever states decide about same-sex marriage. See the helpful discussion at CitizenLink.

            Justice Kennedy's opinion is challenging to sort through with greatly varied reasoning, heavy on emotional appeal, used stigmatizing labels, sometimes pejorative adjectives, and is quite vague in some parts. As in his other big opinions from past years (Lawrence v. Texas, Romer v. Evans), Kennedy might have left both his fellow justices (at least on the conservative side) and legal analysts guessing what arguments he intended to make and what the effect his opinion will have in future cases. One of the primary purposes of a Supreme Court decision is not only to decide the precise dispute involved in the case, but also to explain the law in a way that gives guidance to lower courts and attorneys who may have to deal with similar types of cases in the future. The Windsor opinion, on the other hand, may have created a bonanza for law professors who thrive on writing law review articles about the hidden meanings of Supreme Court decisions.  It is indeed the first time the High Court has invalidated a federal law defining or enforcing the definition of marriage.  It did so without any thoughtful consideration of whether male-female marital unions might be distinctive and whether they should or should not deserve any special, unique legal status for the common good.

            The dissents in Windsor are generally focused on a lack of Court authority for the ruling. The Court has no jurisdiction to decide the case nor authority to overturn Section 3 of DOMA, according to Justice Scalia, and his dissent (like his dissents in Lawrence and Romer) dissects the majority's reasoning, but also offers a chilling warning. He essentially charges the majority of deliberately using language and reasoning that sets up a future case or controversy that could allow those same five justices to take the step they did not take this time, of forcing same-sex marriage on all 50 states.  For now, however, the ruling did not create a constitutional right to same-sex marriage. The opinion clarifies that only same-sex couples whose marriages are legally recognized in their home state may obtain federal benefits such as the unlimited marital deduction, immigration claims, and other federal advantages.  Justice Kennedy's opinion made this boundary explicit: "This opinion and its holding are confined to those lawful marriages." Windsor, 26.

            This case, though about a federal law, is clearly very important to states, though nothing was changed regarding state laws.  State representatives may wish to secure and shore-up their state laws on marriage.  Within hours of last week's marriage rulings, in fact, Governor Mike Pence of Indiana issued a statement calling upon the General Assembly to place a constitutional amendment on the ballot for the people of Indiana to vote on next November.
  
            Marriage stabilization is the beginning of family restoration for the common good.  Your marriage and mine are the single greatest influences that can be presented to the world on the significance of marital oneness.  Laws on marriage generally reflect how citizens treat marriage, and how society views it and wishes its lawmakers to treat it.  United States v. Windsor is historic in a national turn from marriage's original design to accommodate changing cultural tides, rather than maintaining a solid foundation for present and future posterity.


            The next post will consider the California case of Hollingsworth v. Perry and how the Supreme Court's opinion in that matter affects family restoration.

 

Marriage of "Supreme" Importance

Marriage will once again be front and center on the docket of the Supreme Court of the United States, as it announced Friday afternoon that it will hear cases dealing with state marriage amendments from Ohio, Kentucky, Michigan and Tennessee in April.  A decision can be expected on that last day of the High Court's session in the summer. At issue is the right of a state to define marriage in its constitution and decide whether to recognize same-sex marriages performed in other states.  Ultimately, the issue will be whether states can regulate any aspect of marriage as part of state public policy.

In the article "Federalism or Extreme Makeover of State Domestic Regulations Power?  The Rules and the Rhetoric of Windsor (and Perry)," by Elizabeth Oklevitch and me (available for a free download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093), we discuss at length the opinion of the Supreme Court of the United States in United States v. Windsor as express in its affirmation of the right of states to regulate family law.  Windsor affirmed state power at least twenty-nine times, while simultaneously repudiating the federal definition of marriage.  At the same time, the California Proposition 8 case of Hollingsworth v. Perry provided an opportunity for the High Court to endorse democratic involvement in the process of state regulation of family law, but there it ruled that citizens had no standing to represent their own process in the voter-approved state referendum defining marriage for California. Thus, the characterization of federalism in Windsor conflicted with the actual outcome of Perry in the summer of 2013. In light of that apparent contradiction, we argued that “the traditional power of States to define domestic relations” mandates that the federal government should refrain from intervening in marriage entry regulation.

 

Now the federal Circuit Courts have arrived at conflicting conclusions regarding a state's right to define marriage in domestic relations laws, and conflicting notions as to how full faith and credit must be applied to those rulings when new expanding definitions severely offend a state's strong public policy favoring dual gender marriage.   The Supreme Court of the United States will now step in to settle the conflict, and this time it should simply restate its own rules and dicta from Windsor and leave the regulation of marriage to state law.

 

In Windsor, a couple of the Justices already predicted April's coming arguments, but with different conclusions.  Chief Justice Roberts expressed confidence that “state power to define marriage, state sovereignty, and state diversity,” federalism-based arguments relied on by the Court in reaching its determination, will support state choices to recognize only heterosexual marriage in the future. (Windsor at 2697, Roberts, J., dissenting).  In contrast, Justice Scalia’s dissenting opinion exudes far less optimism.  Scalia saw the Court’s seven-page tribute to states’ power to define marriage as a farce, and speculated that the majority relied on the federalism rhetoric to shield the reality that it laid the groundwork to extend its holding to state laws excluding same-sex marriage at a later date. (Windsor at 2692, Scalia, J., dissenting).  Distrusting the Court’s assertion that “[t]his opinion and its holding are confined” to state-sanctioned marriages, Scalia discussed how Lawrence v. Texas, the case finding a right to private consensual sodomy, was expanded to justify Windsor even though Justice Kennedy in Lawrence explicitly said its holding was not related to any official recognition of homosexual relationships.  These observations and predictions by the Justices themselves point to state regulation of marriage and family matters as standing on thin rhetorical ice with the majority.

 

Justification for expansion of rights never envisioned by the United States Constitution, regardless of the outcome of April's arguments, should encourage those who understand the time-honored definition of marriage as the crux of civilization to stand firm in personal belief. Russell Moore, President of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, the moral and public policy agency of the nation’s largest Protestant denomination, writes this about the importance of the marriage case at the High Court in his January 16 post entitled :The Supreme Court and Same-Sex Marriage: Why This Matters for the Church: "The Supreme Court announced today that [it is] taking cases on whether same-sex marriage is a constitutional right. Effectively, this means that the highest court in the land will decide, this year, whether marriage, as defined for thousands of years, will exist in our country any longer. ... [T]his is not something we should shrug off. Marriage isn’t merely a matter of personal import or private behavior. States recognize marriage for a reason, and that reason is that sexuality between a man and a woman can, and often does, result in children. The state has an interest in seeing to it that, wherever possible, every child has both a mother and a father. (See Rethinking Mom and Dad, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462112 .)   The state doesn’t create this reality. It merely recognizes it, and attempts to hold husbands and wives, fathers and mothers, accountable to their vows and to their responsibilities. In every aspect of the Sexual Revolution, from the divorce culture to cohabitation to casual sex to the abortion revolution, children have borne the burden.  If the Court finds a constitutional right to same-sex marriage, we will have a generation of confusion about what marriage is, and why it matters. Beyond that, we have already seen that the Sexual Revolution isn’t content to move forward into bedrooms and dinner tables. The Sexual Revolution wants to silence dissent. The religious liberty concerns we are grappling with already will only accelerate.  We should pray that the Supreme Court does not take upon itself a power it doesn’t have: to redefine an institution that wasn’t created by government in the first place. But we shouldn’t wring our hands in fear, or clench our fists in outrage."

 

Marriage between a man and a woman protects children and strengthens society.  The right of a state to define marriage in its own state constitution and domestic regulations and to decide whether to recognize same-sex marriages performed in other states fosters family strength.  (Read more about that at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427462.) It is at the heart of democracy and at the heart of strong state policy.  The Supreme Court could very likely rule, however, that all states must follow laws endorsing marriage expansion to same-sex couples.  That ruling would in turn inevitably advance marriage expansion away from incest restrictions, toward the weakening and removal of age restrictions on marriage, and to the elimination of monogamous requirements. 

 

Change to family and society as a consequence of marriage expansion is inevitable, but the specifics of that change are unpredictable.  As Justice Alito stated in Windsor, “change in family structure and in the popular understanding of marriage and the family can have profound effects,” and yet, if acceptance of same-sex marriage becomes widespread, “[t]he long-term consequences of this change are not now known and are unlikely to be ascertained for some time to come.” (Windsor at 2715, Alto, J., dissenting).   It is also generally recognized that continued expansion of marriage will affect marriage as an institution, either strengthening or weakening it.  Indeed, advocates on both sides of the same-sex marriage debate maintain that marriage expansion undermines the institution of marriage. (See fn 150, Oklevitch & Kohm.) 

 

If the Supreme Court rules to require all states to recognize same-sex marriage the exact way marriage will be affected is uncertain, yet it will unquestionably be altered, and the reverberations of those changes will be felt throughout society for generations.

Marriage Rules or Rhetoric? Extreme Makeover Style

So much has happened in marriage litigation and policy-making over the past few months, that an average American may be wondering if there's been an "Extreme Makeover" of sorts in family law in the United States.  State authority to regulation domestic relations, an area of law traditionally held by the states, may seem clouded and unclear in light of federal judicial intervention.  When a federal court declared unconstitutional the state of Utah's voter-approved definition of marriage, that state decided to go directly to the U.S. Supreme Court in an effort to protect its regulation of marriage.  This according to a recent account by the National Law Journal which writes:
"Kitchen v. Herbert would be the first same-sex marriage case to reach the high court since its June 2013 decision in United States v. Windsor, invalidating the definition of marriage as between a man and a woman under the federal Defense of Marriage Act.  A divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit on June 25 held that the Utah ban was unconstitutional. That ruling left the state with the option of seeking review by the full Tenth Circuit or filing a petition for review with the Supreme Court.  Utah Attorney General Sean Reyes announced on Wednesday that he would seek the high court's review. ...The Tenth Circuit was the first appellate court to rule on the constitutionality of a same-sex marriage ban. A decision by the Fourth Circuit in two challenges to Virginia's laws is expected soon. ...The justices have the option of declining to hear the Utah petition. If they do grant review, arguments likely would occur in 2015."

The need for this litigation was not unforeseen.  In our recent article (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093) published by the Elon Law Review, Elizabeth Oklevitch and I suggested that the rhetoric in Windsor would lead to state challenges such as those faced by Utah, and Virginia (another state challenge we have discussed at FamilyRestoration), in "Federalism or Extreme Makeover of State Domestic Regulations Power? The Rules and Rhetoric of Windsor (and Perry)," available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093. These Supreme Court Opinions express an affirmation (at least rhetorically) of the right of states to regulate family law - yet also ruled to uphold same-sex marriage policy in one case (Windsor) while not even allowing a hearing on the voter-approved state policy upholding marriage in the other (Perry).  We suggest this incongruity in jurisprudence represents a sort of extreme makeover of state domestic regulations law.

In light of this apparent contradiction, this article considers whether "the traditional power of States to define domestic relations" is affected by the mandate that the federal government refrain from intervening in marriage entry regulation when one state's ability to define marriage was effectively denied in Perry. An overview of some collateral effects of both the rules and rhetoric of Windsor (and Perry) on state family law regulation illuminates this question. Such an overview reveals that these cases do more than simply uphold and clarify federalism; at least to some extent, they impede the ability of states to define domestic relations, with practical and ideological ramifications for family law and liberty interests. Part I provides a background on the dicta of Windsor heralding state regulation of marriage. Part II considers and examines collateral effects of Windsor (and Perry) on family law in three categories. Those categories include federal conflicts with state regulations, interstate conflicts, and family law policy. Part III discusses an ideological shift Windsor (and Perry) promote in family law and the effects of the Supreme Court's endorsement of this new ideology upon personal liberty interests and marriage regulation.  Read it at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093.

While the rules stated by the Supreme Court uphold state's rights to stabilize and restore family law policy in marriage, the rhetoric works to deconstruct state regulation of family law.  Utah is challenging that outcome, asking the High Court to reconsider it's rhetoric and rules in 2015.  Marriage rules and rhetoric greatly matter to family restoration.

State Confusion over Issuing Same-sex Marriage Licenses

A Pennsylvania judge last week ordered town clerks to discontinue issuing same-sex marriage licenses. Same-sex marriage is not part of the law in Pennsylvania, yet recent federal Supreme Court decisions have led to confusion in local state offices.  You can read more in a recent article by JURIST.  

This Blog discussed some of the confusion over the proper application of Windsor in previous posts. The federal government is taking steps to clarify some of the uncertainty surrounding Windsor; for instance, JURIST reports the US Department of Labor recently explained that federal employee benefit plans will be available to all legally married couples, even those domiciled in states that do not recognize same-sex marriages. However, as the situation in Pennsylvania illustrates, the impact of Windsor has not yet been clearly delineated. 

JURIST is reporting that it is not yet clear how this Pennsylvania decision will affect same-sex couples who have obtained marriage licenses already in Pennsylvania:

In August lawyers for the Pennsylvania Department of Health and Governor Tom Corbett argued in a legal filing that Hanes' decision to issue marriage licenses to same-sex couples is a separation-of-powers violation that "risks causing serious and limitless harm" in Pennsylvania. In July the Pennsylvania Department of Health filed a petition in the Commonwealth Court seeking to stop Hanes from issuing marriage licenses to same-sex couples. Also in July the American Civil Liberties Union (ACLU) filed a federal lawsuit seeking same-sex marriage in Pennsylvania. The Governor's Office of General Counsel wrote to the attorney general in defense of the Pennsylvania statute, arguing that Windsor does not strike down the state's marriage law, but just the federal Defense of Marriage Act. Since the Windsor ruling, courts across the country have been citing the decision.

You can find a list of those situations at JURIST.  It is interesting that the Penn State Law Review requested an article on Windsor in a different context, which I researched, wrote, and published with them.  That article is available for downloading and reading at the Social Science Research Network. 

It seems that the Supreme Court's decision in Windsor has served less to strengthen marriage for all participants regardless of gender, and more to jeopardize its stability among the states.  Fostering family restoration requires strong state definitions and endorsement of marriage and the law of marriage entry. 

Although Pennsylvania law appears to have that type of regulation, it is being challenged on the most local level.

A Unique View on the Rule of Law in Marriage

Earlier this week a federal district judge in Louisiana issued a key decision finding that the marriage amendment passed in 2004 by 78% of the voters of that state does not run afoul of the U.S. Constitution's guarantees of Equal Protection and Due Process. Accordingly, the federal judge ruled against the several plaintiffs' claims that the amendment is unconstitutional. This was the first time since U.S. v. Windsor that a federal judge upheld a state's conjugal marriage definition, and upheld the right of a state to refuse to recognize same-sex marriages performed in other states.  Read more at http://news.msn.com/us/federal-judge-upholds-la-same-sex-marriage-ban.
Yesterday a federal judge ruled against the Wisconsin and Indiana marriage amendments.  The guest post that follows offers one very unique perspective on these cases, but on the battle for marriage across the nation, from one set of courthouse steps to another....

[Guest post from Luke Douglas, Liberty Law 3L, Conservative Christian Activist, and Oregon Optimist]

Deafening cheers electrified the victory celebration.

On November 4, 2008, the people of California passed Proposition 8, defining marriage as between one man and one woman. I was there. I was there when supporters of traditional marriage, pouring for hours over live polling data finally erupted with shouts of triumph. At the victory party in Sacramento, amid throngs of cheering volunteers, I remember realizing that not all was lost in this world.

Don't get me wrong, conservatives took a beating that night. Barack Obama was elected President. Both houses of Congress swung decidedly to the left. But, after an all-out political and legal battle years in the making, the people had spoken, and they spoke for true marriage.

I was fifteen years old in November, 2008. Raised in Oregon, I took a road trip to California to be involved in the campaign to preserve marriage, as well as a congressional race. It was my first campaign, but far from my last. Volunteering to help pass Proposition 8 was my first foray into politics, and it was the moment I fell in love. I fell in love with standing up for freedom. I fell in love with the heat of battle and the worldview war. That night in Sacramento, California, I fell in love with activism.

Fast forward to this week.

On Thursday, the U.S. Court of Appeals for the Seventh Circuit brought the hammer down on traditional marriage. The unanimous bench declared that "homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world." The Court ruled that tradition, no matter how foundational, cannot be the basis of justifying "discrimination," and that the States' interest in advancing procreation was "So full of holes that it cannot be taken seriously."

Check out my detailed news coverage of this story here.

To understand this story in context, I need to finish my story.

After the Prop 8 Campaign, my path took me deeper into politics. It exposed me to work on lobbying to protect DOMA when the "Respect for Marriage Act" would have overturned it. It led me to volunteer in the cases that took Proposition 8 up through the appeals process by helping draft Amicus Briefs. It led me to pursue law as a profession.

On June 26, 2013, I was there again. Not in Sacramento where we passed Prop 8, but in Washington, DC where they overturned it. I had just finished my first year of law school, and I was interning for a public policy organization in Washington. I went that morning to the front steps of the Supreme Court with other activists. We were expecting to find two cheering crowds representing both sides of the debate.

We were sorely mistaken.

On the front steps, overflowing out across the street, bustling about in all directions was a massive anti-marriage crowd. They were protesting so loud you couldn't hear yourself think. While the packed courtroom walked through its pre-announcement formalities, I have no doubt that those inside could hear them loud and clear.

Up for decision were U.S. v. Windsor, the challenge to DOMA, and Perry v. Brown, the challenge to Prop 8 from California. Like my first experience in politics, this day ended in triumphant shouts, but not from the same side.

The Supreme Court declared that the federal government could not define marriage as between one man and one woman, and, in a classic political dodge, deflected the question of state marriage laws for another day. Although Windsor spent a few pages touching on the rights of states to regulate it for themselves, it spent countless pages condemning even the thought of defining marriage at the federal level, accusing Congress of animus and hatred against gay people.

While Justice Kennedy's majority opinion claimed the states would be able to define marriage for themselves, let's not forget how he arrived at his conclusion in Windsor. Ten years earlier, he wrote the Court's opinion in Lawrence v. Texas, legalizing same-sex relationships. In that decision, he claimed that the rule would never affect marriage itself. Yet ten years after Lawrence, he cited his own opinion as the basis for redefining marriage in Windsor.

The seed that Justice Kennedy planted in Lawrence sprouted in Windsor, and it will bear fruit in the next case if we don't nip it in the bud. He may try to promise in 2013 that he will not touch state marriage laws, just like he promised in 2003 that he would not touch marriage at all, but let history tell us whether politicians can be trusted.

Since those decisions last summer, the lower courts have entered a free-for-all feeding frenzy. Kennedy's majority opinion demonstrated the high Court's disregard for legal authority, and their willingness to pull nebulous new standards out of thin air as they go along. As a consequence, lower courts could rule either way on state marriage laws, but they have overwhelmingly opted to rip traditional marriage up by its roots.

The Supreme Court almost seems to be testing the waters. As though the swing votes on the bench hoped to redefine marriage, but they needed to see first whether public opinion would stomach it. They may have maneuvered out of deciding the issue of state marriage laws the first time around, but their real decision cannot be more than a year or two away. Already they have stayed the enforcement of multiple Circuit Court decisions, which simply means that they will address the issue themselves very soon.

In short, Windsor and Perry did not establish a standard, they removed all certainty. They left every court and every citizen in America wondering what the law is or what it will be tomorrow. There is no standard in Windsor, only a deliberate experiment in chaos.

And in the void left by the collapse of law, there is room to build a new standard. A standard in which tolerance transforms into the new tyranny.  This question goes to the very root of our form of government.  Will we be governed under the rule of law, or by nine life-appointed philosopher jurists? Will we be governed by the vote of our people, or by helplessly watching black-robed demigods use the pretense of law to experiment with civilization?

I will never forget being there in Sacramento the day we passed Proposition 8. I will never forget being there on the steps of the Court the day they shot it down. Few people were privileged to be present on both days, but I was not the only one who was involved in the battle.

Fighting the good fight has always been the greatest privilege, win or lose. From my first foray into activism, up until last summer, then on into the present and the future, the same war of the worldviews is will go on.

So while the judiciary is on trial to determine whether it will uphold the law, even more so we are on trial.

Every one of us is on trial in these cases to determine whether we will sit idly by while our courts destroy the law. Will we bow to the radicalized and militant minority who wants to destroy our heritage, or will we rise to the occasion and pass it on?

That case is for every one of us to decide.

Contact Luke Douglas at his email address at fearlessfreeman@gmail.com, and at http://www.oregonoptimist.com/.  

To learn more about these marriage law cases and federal intervention into state domestic relations law see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093.  To learn more about why state law set marriage definitions see "Marriage, State Domestic Relations Power and Family Strength" at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427462. 

Law is more than a profession - it's a calling.

Marriage Before the Supreme Court

The oral arguments are over and now marriage is before the Supreme Court of the United States, in two separate but related cases that will make a difference in the direction of marriage in America. Perry v. Hollingsworth, the California Proposition 8 challenge to voters' ability to define marriage for their state, and Windsor v. U.S., the New York same-sex union case that is challenging the federal Defense of Marriage Act regarding a federal definition of marriage, will both likely have profound effects on the future direction of marriage. You can listen to the oral arguments here.

I have joined several law professors in an amicus brief to the High Court in Perry on behalf of four different organizations of black pastors and faith based groups, asking the Court to uphold California's definition of marriage. You can view that here. And I have also joined several law professors in another brief in Windsor and you can view that here. These cases could potentially redefine marriage for every state, regardless of current state law or state constitutional provisions. Several briefs have been filed in the Windsor case. See the Jurist.org article at http://jurist.org/paperchase/2013/02/three-briefs-filed-with-supreme-court-in-case-challenging-doma.php

Though the federal government is neither a plaintiff nor a defendant in Perry, the Proposition 8 case, the Obama administration filed a brief to the U.S. Supreme Court. In its brief, the U.S. Department of Justice asked the court to strike down California's marriage law as unconstitutional under the 14th Amendment to the U.S. Constitution. You can find that brief here.

Last month the Illinois Senate approved same sex marriage, noting that the state will recognize same sex marriage and afford it full faith and credit regardless of the federal rule in DOMA. See it at http://jurist.org/paperchase/2013/02/illinois-senate-approves-same-sex-marriage-bill.php.

The United Kingdom has also set out a plan for "equal marriage," outlining a proposal for marriage to be available to any parties who wish to enter into such a union. Read more about that at http://www.culture.gov.uk/news/media_releases/9585.aspx . To read the text of the proposed legislation read here. http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0126/cbill_2012-20130126_en_6.htm#sch6-pt2 In France citizens are protesting the French president's plan to legalize same sex marriage to allow couples to adopt and conceive children, stating that they "have nothing against different ways of living, but we think a child must grow up with a mother and a father." Meanwhile, an individual has filed a lawsuit to be married to his donkey: http://www.theamericanconservative.com/dreher/does-the-law-love-an-ass/ .

New directions for marriage are ahead; the question is whether they will foster family restoration, or family deconstruction.

Virginia's and Florida's Democratic Marriage Referendums Declined Protection in Federal Court Rulings

Several states in the southeast section of the United States no longer have clear laws and regulations on marriage in light of a recent federal circuit ruling.  In separate actions, federal judges struck down constitutional marriage amendments in Virginia and Florida.  The result of these rulings is that marriage is being challenged in every State that has not already redefined it with marriage expansion for same-sex couples.

In the case of Bostic v. Schaefer, 2014 BL 207107, 4th Cir., No. 14-1167, a group of same-sex couples in Virginia filed suit in federal court to challenge Virginia's voter-approved constitutional amendment affirming marriage. Alliance Defending Freedom attorneys represent the State in that case, and the Prince William County Clerk of Court Michéle B. McQuigg, whom the district court allowed to intervene in defense of the State's marriage laws because she is tasked with issuing marriage licenses in that county.  A three judge panel of the Fourth Circuit decided on July 28, 2014 that Virginia's marriage law, which was approved by a 2006 amendment supported by 57% of Virginia voters as defining marriage as that legal relationship between one man and one woman violates the fundamental right to marry.   For more information on the defense of the case see www.ADFmedia.org. 

This federal ruling infringes on Virginia's state regulatory powers as outlined in "Marriage, State Domestic Relations Power, and Family Strength" at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427462.  The Fourth Circuit,  nonetheless, becomes the second federal appellate court to strike down State marriage laws, following the Tenth Circuit's decisions invalidating similar laws in Utah and Oklahoma. 

In Florida, in a ruling released late on Friday, July 25, 2014, a Miami-Dade Circuit Judge declared Florida's marriage amendment unconstitutional.  That State's marriage law, passed in 2008 by 62 percent of Floridians, was effectively struck down by the ruling.  The opinion stated that the State law "serves only to hurt, to discriminate, to deprive same-sex couples and their families of equal dignity, to label and treat them as second-class citizens, and to deem them unworthy of participation in one of the fundamental institutions of our society."  State marriage laws, however, do not work to demean individuals, but to uphold and strengthen families.  The opinion cited the U.S. Supreme Court decision of Windsor v. U.S. from last summer that nullified a portion of the federal Defense of Marriage Act, but conceded that States should have the right to regulate marriage.  To learn more about that Supreme Court case read "Federalism or Extreme Makeover of State Domestic Regulations Power? The Rules and Rhetoric of Windsor (and Perry), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093.  Indeed, these recent federal cases illustrate that the rhetoric in Windsor has now become the rule in Virginia and Florida.

Two very salient points were made by Fourth Circuit dissenting Judge Paul Niemeyer in the Bostic opinion in Virginia.  First, he pointed out that the majority failed to explain how their ruling would preclude a father marrying his daughter, or someone marrying multiple partners.  Secondly, his dissenting opinion argued that marriage regulation and definition should be left to the states, and not dictated by federal courts.  That position is clearly outlined in the twohttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427462 articles http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093 referenced here in this post.  Niemeyer writes, "The U.S. Constitution does not, in my judgment, restrict the States' policy choices on this issue. If given the choice, some States will surely recognize same-sex marriage and some will surely not. But that is, to be sure, the beauty of federalism."  And federalism is explained and applied to marriage in the piece at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093.   

Family restoration is not buttressed by further expansion of marriage by federal power because that effort steals and destroys State authority to strengthen marriage, while simultaneously deconstructing marriage as a cornerstone institution of any strong society.  Indeed, federal expansion of marriage weakens States, families, and communities.  Same-sex marriage expansion is the proliferation of domestic partnerships by federal fiat.  So "How Will the Proliferation of Domestic Partnerships Affect Marriage"?  Those answers can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=269418.

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 14^th 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.

Weak Ruling on Marriage Reflects Even Weaker Understanding of Sustainable Marriage Public Policy

           Marriage is important to the Virginia domestic relations code.  It is also important to a strong Virginia.  Thursday night’s after-hours decision in the Eastern District of Virginia on the constitutionality of Virginia’s State Marriage Amendment reflects weak jurisprudence that does not support sustainable public policy.

  Virginians defined marriage by state referendum in 2006 with a law that is now contained in Article 1, Section 15 A of the Virginia Constitution.  Virginia is one of thirty states that have moved to strengthen marriage in this manner.   The recent Supreme Court of the United States opinion in U.S. v. Windsor, while striking the federal definition of marriage, expressly held that states have the right to regulate family law.  

 The Bostic decision last night stated that the federal constitution required its ruling to expand marriage without an understanding of the court's own errant legal reasoning.  A Virginia Delegate noted this mistake right away, as the Virginian-Pilot reported.  “The ruling attributed the ‘all men created equal’ credo to the U.S. Constitution when, in fact, that language is in the Declaration of Independence,” noting that the judge’s “inability to tell the difference between the two foundational texts illustrates incompetence.”  Read the full article here. The decision also illustrates a lack of understanding of family law public policy.

 Marriage laws carry great significance for the future of the Commonwealth of Virginia.  According to a 2011 Pew Research Center Study, in 1976 72% of adults were married, while that number dramatically dropped to 51% in 2010.  In the midst of a collapsing marriage culture where marriage is clearly declining in popularity, the traditional power of states to define domestic relations and strengthen marriage culture is undermined and injured by recent rulings that lack solid legal reasoning supportive of state family law.   

              Because family law extends into almost every other area of law, rulings which expand and dilute marriage will further weaken the substance of family law policy. Virginia law on marriage supports the ability of husbands and wives to contribute to the common good through the creation and perpetuation of the family, while simultaneously not working to prohibit same-sex couples from entering into ordinary contractual relationships. 

             Virginia’s law on marriage also recognizes that changing marriage creates inequality, as redefining marriage institutionalizes less diverse structures, producing unequal opportunities for children.  Strengthening marriage, however, champions children's interests, as fathers and mothers together provide the best structure for delivering children into adulthood.  In fact, the Virginia Supreme Court of L.F. v. Breit v. Mason, Record Nos. 120158, 120159, Jan. 10, 2013 determined that a child has a protected liberty interest in knowing and having a relationship with both his father and his mother.  These goals promote and achieve the common good.

 The “right to marry” was first found to be fundamentally protected by the United States Constitution in Loving v. Virginia. The “right to marry a person of the same sex,” however, has not been afforded constitutional protection, even with Windsor and Perry.  

 The political pressure, however, to which recent decisions to expand and dilute marriage have succumbed, is formidable.  The impact of the rhetoric used, rather than solid legal rationale based on the rule of law, now appears to be driving marriage regulation. This is most dangerous for sustainable public policy.

 Cases that promote marriage expansion present two alternate views of marriage - the “conjugal” view and the “consent-based” or revised view of marriage.  Under the conjugal view, the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing. Indeed, the link between marriage and procreation is a hallmark of the conjugal view, inextricably linking the relationship to procreation normatively, a view which fundamentally represents society’s interest in the ordering of adult relationships for the benefit of children and therefore society as a whole. 

 Governments support married men and women as a public structure for their unique service of creating and raising children – the future public – as necessary to the common good.  This view holds romance as the spark that begins lifetime commitment and works to perpetuate society.  Consequently children and family are a prominent concern in conjugal marriage-based family law and policy.

 The consent-based or revisionist view of marriage defines marriage as the solemnization of mutual commitment – marked by strong emotional attachment and sexual attraction – between two persons. Since procreation is not central to this view of marriage, the sex of partners is irrelevant to the definition.  This notion of marriage centers on adult autonomy and commitment.  In this view marriage is an emotional bond where partners seek emotional fulfillment and remain as long as they find that fulfillment.  This view of marriage is ultimately subject to one’s own desires.  It holds romance as perpetuating the self-focused version of heterosexual marriage that has led to its decline, something that family law divorce lawyers generally understand well. The Supreme Court explicitly contrasted the conjugal view with the “new insight” that allows “same-sex marriage . . . for couples who wish to define themselves by their commitment to each other.” (U.S. v. Windsor).  These two views of marriage are in direct contrast – one focusing on children, the other focusing on adults.

 States like Virginia that have fostered conjugal marriage are feeling the effects of political pressures, rather than being encouraged to make sustainable public policy.  Until the ruling of February 13, 2014, state public policy indicated that Virginia law remained deeply committed to children and to married men and women.  

 If Bostic stands, it represents a severe ideological shift in family law.  The changes to family law coming as a result of more widespread recognition of same-sex marriages are dramatically changing what family law is in terms of sustainable state policy.  Changes in marriage bring changes to adoption law, and to parentage, by officially denying a child’s need for both a mother and a father.  It creates unequal opportunities for children adopted into homes lacking mothers or fathers.   It affects kinship and family ties.  Revising marriage into a single-sex option promotes families that would intentionally deprive children of the diversity of a man and a woman, creating inequality for children.  Conjugal marriage conversely guarantees diversity and equality to children.  George Mason Law Professor Helen Alvaré contends in her article published by Stanford’s Law and Policy Review entitled The Turn Toward the Self in the Law of Marriage & Family: Same-Sex Marriage & Its Predecessors, that among other concerns over marriage revision, artificial reproductive technology (ART) will be greatly relied upon to build families for same-sex parents.  Children will live with the effects of those decisions.  (See also Why I Need to Find My Father, W. Daily Press (Eng.), Jan. 23, 2004, at 8 (citing “feelings of revulsion at the clinical method by which we were produced; a sense of loss and grief for deliberately severed relationships with unknown biological kinfolk; a fear of accidental incest; anger and frustration at the lack of respect shown for our missing genetic origins....”).  As same-sex marriages become more prevalent, demand for ART will naturally rise, which will bring with it a host of parentage and custody implications.  The most profound effects of marriage revision may lie in the impact upon family law effectuated by the acceptance of the underlying ideology. This ideological shift centers on the conception of the meaning of marriage.  Both revisionists and conjugal marriage supporters value love, commitment, and rights as well as procreation in marriage; these values are not mutually exclusive. Thus, it is not a matter of substituting these aspects completely, but rather of substituting them as the primary basis and justification for civil marriage. Since family law policies reflect the ideologies they are built upon, changes to marriage toward an adult-centered approach will undermine sustainable family public policy.  

            Other implications arise from the Bostic ruling.  Requirements for entry into marriage (such as of minimum age and unrelated by consanguinity or affinity) are no longer unshakable.   Moral repulsion of incest is not a defense to marriage revision; normalization of sex with children is advanced by consent-based language.  Other elements of the definition of marriage are today more vulnerable because of Bostic and rulings like it.

             Conjugal marriage carries an implicit child-centered approach; adults sacrificing their own autonomy for their children’s best interests.   Adult-centered approaches, such as the revisionist or consent-based understanding of marriage view marriage as more of a self-seeking than a self-giving institution, and thus steer marriage and families in a direction precisely opposite that which is needed to reconnect these institutions to children and to the larger society.  Practically, the effects of exchanging a best interest of the child mindset for an adults-oriented approach would ripple through parentage determinations, child custody determinations, and child support, areas of family law that have traditionally been dominated by the best interest of the child standard. Professor Alvaré makes this point clearly:

            [M]arriage is not a tool for adults to feel better about being different, but an important element to express state interests in the well-being of children. Parents' interests are not unimportant; marital happiness is a terribly important component of adult happiness. Yet in the eyes and on the scales of the law, the state is more vigorously protective of children's interests and looks to strong marital unions as the way of assuring these. This is why the state can interfere with parents in cases of child abuse, why divorcing parties may never have the last word about child support or custody, why adoption procedures attend so much more closely to the interests of the child than even the deepest longings of would-be parents, and why recent federal and state lawmaking efforts about marriage, divorce, and welfare all have children as their rallying cry. (Helen M. Alvaré, The Turn Toward the Self in the Law of Marriage & Family: Same-Sex Marriage & Its Predecessors, 16 Stan. L. & Pol'y Rev. 135, 187 (2005)).

             The ideological shift from conjugal marriage to an expanded view of marriage to protect same-sex families will change family law, damaging sustainable public policy.  In 2006 Virginia formalized its determination that conjugal marriage was the best family policy for the state, largely because it transforms self-centered, single adults into connected mothers and fathers who together overcome obstacles in life to build a natural family across multiple generations.