WASHINGTON – The U.S. Supreme Court of the United States is expected to tackle the question of whether the U.S. Constitution requires states to legalize gay marriage.
The court will hear arguments next week in two cases dealing with gay marriage – Hollingsworth vs. Perry, a challenge to California's Proposition 8, which defined marriage as the union of one man and one woman; and U.S. vs. Windsor, a challenge to the federal Defense of Marriage Act, which defines marriage as the union of one man and one woman for the purposes of federal law.
In a Tuesday symposium on the cases sponsored by The Heritage Foundation and Alliance Defending Freedom, John C. Eastman, Henry Salvatori professor of law and community service and former dean at Chapman University School of Law, said he does not expect the court to sidestep the controversial issue of gay marriage by deciding the case narrowly on a process issue, such as jurisdiction, as some have argued. Rather, Eastman expects the justices to decide whether or not the Constitution requires states to legalize gay marriage.
Gay marriage advocates are hoping that the high court will legalize gay marriage in all states by arguing that not allowing same-sex couples to marry would violate either the due process or equal protection clauses of the Constitution. Eastman believes the court should not and will not support that view.
"I think the court is ultimately going to confront the hard issue – does it violate due process or equal protection to adhere to traditional marriage, or, put another way, does the Constitution render traditional marriage unconstitutional? And I think at the end of the day the court is going to say no to that," Eastman said.
Austin Nimocks, an attorney for Alliance Defending Freedom who will serve as co-counsel defending Proposition 8 during oral arguments at the Supreme Court, agreed.
"Those arguing for same-sex marriage in the Supreme Court are arguing that same-sex marriage is a fundamental right in the U.S. Constitution, which means that it is deeply rooted in our country's history and traditions," Nimocks said. "Our argument is very simple – that's not true.
"You can't find in the history of our country and our Constitution a deeply rooted tradition and history of same-sex marriage. Marriage is what it has always been, since the beginning of time. The Supreme Court has acknowledged marriage 14 times in its prior jurisprudence. It has rejected a claim for same-sex marriage already, back in the 70s. And so, in no circumstances can our opponents make the constitutional case that same-sex marriage is a fundamental right in the U.S. Constitution."
Ryan T. Anderson, Simon Fellow in Religion and a Free Society at The Heritage Foundation and co-author of What Is Marriage? Man and Woman: A Defense, argued that public policy with regard to marriage needs to answer three central questions: What is marriage? Why does marriage matter for public policy? And what are the consequences of redefining marriage?
"Marriage exists to unite a man and a woman, husband and wife, to be mother and father to any children that union produces. It's based on the anthropological fact that men and women are different and complementary, the biological fact that it takes a man and a woman to make a child, and the social reality that a child needs a mom and dad," Anderson said.
This does not mean, though, that couples who do not want children or who are unable to have children should be denied marriage, Anderson explained.
"Government is not in the marriage business to regulate citizens' romantic lives. Government is in the marriage business because, while not every marriage will produce a child, every child has a mother and a father, and marriage is the institution that allows the state the least coercively, least intrusively, to ensure that child has its mother and father committed to each other and to the child," Anderson said.
Since most marriages produce children, Anderson also believes that government policy should be directed toward that fact, rather than the few exceptions.
"When you make public policy, when you make laws," Anderson said, "you deal with the rule, not the exception to the rule. You deal with wholesale, not retail. So, while it's true that there are a handful of couples that will never have a child, it still holds up the model of marriage being a man and a woman, and it's still true that every child that comes into existence has a mother and a father. And promoting marriage is the only way the state can encourage adults to take responsibility for those children."
While noting that Supreme Court decisions are notoriously difficult to predict, Eastman suspects that the cases will be decided five to four, with the usual liberal/conservative blocs lined up against each other and Justice Anthony Kennedy providing the deciding vote.