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.

Sources:

https://www.lds.org/topics/plural-marriage-in-kirtland-and-nauvoo?lang=eng

https://supreme.justia.com/cases/federal/us/98/145/

http://www.oyez.org/cases/1851-1900/1878/1878_0

http://www.scotusblog.com/2015/04/preview-on-same-sex-marriage-part-ii-the-states-views/

http://www.scotusblog.com/2015/04/preview-on-same-sex-marriage-part-ii-the-states-views/

http://www.scotusblog.com/2014/11/sixth-circuit-the-split-on-same-sex-marriage/

http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-144_pet_amcu_mi.authcheckdam.pdf

http://www.supremecourt.gov/ObergefellHodges/PartyBriefs/14-574_Brief_of_Beshear.pdf

http://www.supremecourt.gov/ObergefellHodges/PartyBriefs/14-562_Brief_Of_Tanco.pdf

http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about

http://www.scholastic.com/teachers/article/role-supreme-court