SCOTUS Ruling on Marriage Could Impact the Constitution
In 1878, the United States Supreme Court ruled in Reynolds v. United States that marriage was between one man and one woman and that religious duty was not a defense to a criminal indictment. George Reynolds, a member of The Church of Jesus Christ of Latter-day Saints (Mormon Church), was charged with bigamy under the Morrill Anti-Bigamy Act after marrying Amelia Jane Schofield while still married to Mary Ann Tuddenham in Utah Territory.
The court ruled that “Every person having a husband or wife living, who marries another, in a Territory, or other place over which the United States has exclusive jurisdiction, is guilty of bigamy even if they are following religious teachings and practices.
An indirect consequence of this case is the court ruled that marriage is defined as a union between ONE man and ONE woman, and the First Amendment right to freely practice their religion did NOT allow for polygamy or bigamy. This definition of marriage has stood for 137 years. The question now is what has happened to change the definition of marriage as defined by the U S Supreme Court 137 years ago?
Utah became a territory in 1848 when the United States won the Mexican War. In the Treaty of Guadalupe Hidalgo, Mexico had to give what is now the American West (including Utah) to the United States, but it took 48 years for Utah to become a state. On January 4, 1896, President Cleveland proclaimed Utah the 45th state. Utah was required to ban polygamy in the state constitution before they could receive statehood, which established marriage as a union between one woman and one man.
In 1996, President Clinton signed into law the Defense of Marriage Act (DOMA), which, for federal purposes, defined marriage as “only a legal union between one man and one woman as husband and wife” (1 U.S.C. § 7). This decision was made 118 years after the U S Supreme Court ruling against bigamy and polygamy, which set the precedence for a marriage between one man and one woman.
The historic gay marriage case heard by the U S Supreme Court in April 2015, seems to totally miss the point of the question of what happened that necessitates a reversal from a Supreme court Ruling 137 years ago. No one really answered the question of what events occurred that warrant changing a standing U S Supreme Court Ruling and how, why and when should that ruling be changed. Justice Stephen G. Breyer made the statement, “Suddenly, you want nine people outside the ballot box to require states that don’t want to do it to change.”
The Court is facing only constitutional questions; there is no doubt about the meaning of the state laws and state constitutional amendments that categorically reserved marriage only for one man and one woman which has been the practice for years. States have always decided for themselves when to yield to laws of other states. Same-sex couples want to change the definition of marriage, AND change the constitution. The question is whether the Supreme Court has the judicial authority to do that.
The U. S. Court of Appeals for the Sixth circuit upheld the state’s bans on gay marriages in Kentucky, Michigan, Ohio and Tennessee. Kentucky is defending both a ban on same-sex marriages and a separate ban on the official recognition of existing same-sex marriages. Michigan is defending only a marriage ban, and Ohio and Tennessee are supporting only recognition bans.
Four of the common points in the four different briefs from those states are:
- State bans, either on marriage or recognition, were not passed to engage in discrimination, but simply to codify the traditional notion that marriage should be restricted to opposite-sex couples.
- States are entitled to define marriage in that traditional way, to promote child-bearing within a natural biological partnership. and same-sex couples can be excluded from marriage because they are not similarly capable of procreation as a couple.
- There is no basis for imposing on states a more rigorous test of the constitutionality of their marriage laws. They need only have a rational public policy behind them, and promoting procreation is such a policy, as is preserving traditional marriage.
- The Court should treat the pleas of same-sex couples as a request to create a new constitutional right to marry a same-sex partner, and there is no history justifying any such right.
- Michigan’s brief points out that allowing states to determine their own choice on marriage respects the proper division of government powers. These arguments were used in the writings of Justice Anthony M. Kennedy. Michigan also points out that a constitutional ruling in favor of same sex marriage would be “a radical change in the Court’s jurisprudence.” This argument is based on the fact that the U.S. Supreme court does not have the power to “change or rewrite” the constitution.
Michigan argues that the eleven states that voted to change their laws, by state legislation or by voter approved ballot measures, deserve respect. Michigan also stresses that the core argument of the fundamental value of marriage is to “reinforce the benefit of every child being connected to his biological mother and father.” Keeping marriage as “child-centered,” the brief said, “increases the likelihood that biological parents stay together even when their emotions fade, and reducing the risk that any child will be born out of wedlock.”
“Kentucky’s brief in defending its marriage ban, closely tracks the Michigan arguments about democratic process and the perceived need to confine marriage to a child-centered unit. It also seeks to refute any interpretation of the Supreme Court’s decision in United States v. Windsor as even hinting that the Constitution requires states to allow same-sex couples to marry. Indeed, the brief argues that the Windsor ruling is a reaffirmation of states’ prerogative to define marriage as they see fit, without intrusion by the federal government to impose another choice.”
The Sixth Circuit, in their rulings in upholding state’s rights to ban, ruled to the question of state authority to refuse to officially recognize same-sex marriages performed in other states, found that “states have always decided for themselves when to yield to laws of other states.”
The role of the U S Supreme Court is to protect civil rights and liberties by striking down laws that violate the Constitution, not rewrite the constitution. It has never been the role of the Supreme Court to change the constitution. The Supreme Court has the power of judicial review, and it plays an essential role in ensuring that each branch of government recognizes the limits of its own power. The process of changing the constitution does NOT involve the U S Supreme Court.
As the U S Supreme Court rules on the same sex issue, they will be ruling on several other issues simultaneously, including state’s rights to make their own laws, state’s rights to yield to laws of other states, a child’s rights to be raised in a natural biological partnership, connected to his biological mother and father, and whether the U S Supreme Court has the right to change the constitution that has been standing for years.
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Comments - 2 Responses to “SCOTUS Ruling on Marriage Could Impact the Constitution”
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Utah Open Political Debate:
Gil Gillingham – When politicians “leverage” any entity into doing their will, under the threat of withholding something to which that entity is entitled, it is basically the crime of extortion – with which WE would be charged for the same behavior. The Supreme Court is often at political odds with the expressed desires of the American citizens. SCOTUS has not been the “Judicial Branch” for quite some time. They will become the unconstitutional “Dictatorial Branch”, when they overturn 137 years of court-established precedent.
Kim Kasey – Interesting article…I’m having trouble with this part…” Keeping marriage as “child-centered,” the brief said, “increases the likelihood that biological parents stay together even when their emotions fade, and reducing the risk that any child will be born out of wedlock.” To me, this is akin to saying that parents should stay married, when it’s clear they shouldn’t. I’d rather divorce than have my kids living in dysfuntion.
Charlie Sean – The State is really not interested in civil unions incapable of producing the next generation of slaves.
Kim Kasey – But another question I have is this…It’s in the constitution that states have to recognize contracts made in another state. How is the SC going to handle this?
Kim Kasey – My hope would be that they abide by the constitution and rule that non-same-sex marriage states have to recognize the contract. I’m supposing this would completely undermine a state’s ability to refuse.
Kim Kasey – But wouldn’t it take a constitutional change to accomplish that?
Gil Gillingham – Kim, undermining the states authority to make legal determinations within it’s defined boundaries, is an infringement upon Amendment X (with the exception of civil rights issues). There is a reason for the States Rights amendment, and that is to prevent the establishment of a federal tyranny. Apparently, this HAS become an issue, since at last count, 33 states had reaffirmed their rights under Amendment X. The feds will push the envelope as long as they are allowed to do so, by the Congress and the several states. The feds recognize NO boundaries, so long as they are not called upon to defend their transgressions. The leadership at ALL levels appears to have absolutely NO self-control, and all departments and agencies spend like drunken sailors, as they clamor for expansion and increased budgets!
Donald W. Ball – Sorry, Gil. Appomattox happened. States’ Rights is deader than Elvis.
The Tenth Amendment was intended as a catch-all, a CYA type thing… as in, “anything we didn’t cover in the above Amendments, we’ll let you work out for yourselves.”
The Supremacy Clause within the body of the Constitution (Article VI) delivers the death blow to your ridiculous notion of state sovereignty.
Gil Gillingham – Oh, yeah… I forgot. The government gives with one hand, while taking away with the other, however… it was The Supreme Court under John Marshall that was influential in construing the supremacy clause. There are those who would reasonably argue that the “supremacy clause” gives no such specific power to the feds, and takes NOTHING away from the states that meets Constitutional conformity tests.
“Construe” is an interesting word, and it has an opposing twin – MISCONSTRUE. It is synonymous with “interpret”, and the last interpretation was 213 years ago. Federal statutes and other federal laws are, of course, “supreme” only if made in pursuance of the Constitution, and Chief Justice John Marshall used this language in Marbury v. Madison (1803) to support his argument that the Constitution contemplates judicial review.
If a substantial number of states are dissatisfied with federal intervention into states matters, there is always the secession option. Just because it hasn’t been used since the beginning of the Civil War, doesn’t mean it no longer exists. But, it is further complicated by existing laws, requiring that secession be APPROVED by Congress, fer shits sake! How stupid is that? Again, “give with one hand, while taking away with the other”.
RESTORATION OF AMERICA:
Ben Myers – Guess what? SCOTUS is going to use the precedent of Loving v Virginia to legalize same-sex marriage in all 50 states. As the opinion for that case went, “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” And for the record, “Because Jesus/God told me so” isn’t a valid legal defense for denying someone their civil rights.
Larry Morrison – I just wish we would pass a law defining Baptism!….I’m so damaged because some want to allow a simple sprinkling to happen…when We (that are in the right) all know God wants it to be by total Immersion…(Yes, that was Sarcasm) (why is government involved at all? They have this law against Bigamy/polygamy….but as long as you don’t call it marriage, you can bed as many different women or men that you want and have unlimited offspring). Government is a failure at human relationships (they reward and encourage the fertile, unwed with welfare programs) Marriage should not be governed by man, but by God and those that belive as they see fit, based on their faith…and no one has a belief monopoly on God. Even if you think you do!
Donald W. Ball – Sorry again, Gil. “Misconstrue” and “interpret” are NOT synonyms. “Miscontrue” and “misinterpret” would be closer, as it means that you are NOT getting the gist of whatever it is you are reading. The right to secede from the Union does NOT exist. Nowhere is any such right mentioned within the Constitution, and as a procedure for states to enter the Union does exist it would appear that the Founding Fathers saw no reason to include a means of withdrawal from the same. And the only folks who ever wished to secede did so because they wanted to deny civil rights to certain citizens, which is unAmerican in and of itself… hardly anything to be proud of.
Gil Gillingham – Donald, “It (being CONSTRUE) is synonymous with “interpret”. My error for being nonspecific, and – unlike some – I will own it.
Don’t be “sorry”, Donald, but Do be accurate. There is nothing in the Constitution that specifically PROHIBITS secession either – which is why the idea still gets kicked around. There have been several attempts since the inception of our Constitution to have such prohibitions included, but they were all soundly defeated. Your “explanation” of secessionist’s motivation is your opinion, and not necessarily fact. Believe whatever you will – it’s your right! smile emoticon
Utah Republicans – UnOfficial Group:
Lisa Shepherd – This article begs criticism. It fails to mention the legality of the non-biological relationship with an adopted child of a heterosexual married couple, the illegality of an adopted child and the illegality of a non-child bearing heterosexual married couple. Just sayin. wink emoticon
David Yu-lin Chiu – those are exceptions which prove the rule… undefining Marriage will go way beyond what the thoughtlessly trendy now claim
The US Supreme Court cannot “impact” The Constitution. As Elder Dallin H Oaks stated, it is the US Supreme Court that defines what is Constitutional. Like the First Presidency and Quorum of the 12 Apostles determines how to apply doctrine in our day, it does not follow that because present Church policies conflict with past Church policies that doctrine has changed. This best describes Elder Oaks view of how the US Supreme Court works when he says, “The US Supreme Court is the final arbiter on what is Constitutional.” Past rulings may conflict with present rulings of the Supreme Court, but this does not mean the Constitution has changed, rather that it is being applied as a matter of policy that is relevant to the present day.