Circumventing Citizens on Marriage: A Survey

Written by Dominique Ludvigson

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Despite a history of consistent voter support for traditional marriage, the U.S. Supreme Court has been asked to address questions concerning this foundational social institution. The issue has been forced onto the Court’s docket by activist judges who have overruled democratically established marriage policies and by executive branch officials who have abandoned their duty to faithfully execute the law. In its coming term, the Court will have the opportunity to ensure that questions about the nature, purpose, and public interest in marriage are answered by the people through democratic processes, not by unelected judges.

Institution_of_Marriage_Traditional_Family_ValuesDespite a history of consistent support for the traditional definition of marriage, both at the ballot box[1] and in the enactment of the Defense of Marriage Act (DOMA) by large bipartisan majorities in both Houses of Congress in 1996, the question of marriage has now reached the U.S. Supreme Court. In recent years, the institution of marriage—the basic building block of civil society—has been the target of unrelenting pressure by advocates seeking its redefinition.

This fall, the U.S. Supreme Court will decide whether to hear one or more legal challenges to the institution of marriage. The issue has been forced onto the Court’s docket by activist judges who have overruled democratically established marriage policies and by executive branch officials who have abandoned their duty to faithfully execute duly enacted laws.

Litigation over marriage has drawn outsized media coverage, presenting the appearance of a powerful cultural movement to transform the institution—a fiction that unravels when Americans go to the polls. In its coming term, the Court has the opportunity to ensure that questions about the nature, purpose, and public interest in marriage are answered by the people through democratic processes, not by unelected judges.

Cases Appealed to the U.S. Supreme Court

The Supreme Court has been asked to consider multiple marriage cases in its upcoming term. If the Court agrees to review one or more of these cases, it will likely issue its ruling by June 2013.

Hollingsworth v. Perry. This case addresses Proposition 8, the successful 2008 ballot initiative in which California voters adopted a marriage amendment to their state constitution that preserves marriage as a union between one man and one woman.[2] Both a federal trial court and a divided panel of the U.S. Court of Appeals for the Ninth Circuit ruled against Proposition 8. Parties defending Proposition 8 have asked the U.S. Supreme Court to determine whether the U.S. Constitution bars the people of California from adopting a constitutional amendment that defines marriage as a union of one man and one woman.

Multiple cases challenging the constitutionality of the federal Defense of Marriage Act. The other set of cases involves the Defense of Marriage Act, which President Bill Clinton signed into law in 1996 after it was passed with overwhelming bipartisan support by both houses of Congress (342–67 in the House and 85–14 in the Senate). For the purposes of federal law, Section 3 of DOMA defines marriage as the union of one man and one woman.[3] In May, a panel of the U.S. Court of Appeals for the First Circuit struck down DOMA’s definition of marriage.[4] This decision is the subject of three petitions to the Court for review.[5] Three additional DOMA petitions ask the Court to bypass typical appellate court review to rule now on several district court decisions that also invalidated Section 3 of DOMA.[6]

Marriage in the States

In the vast majority of states, marriage is still defined as between one man and one woman by statute, state constitutional amendment, or both. Where the question has been put directly to the people of the states, they have overwhelmingly supported retaining this definition of marriage. For instance:

Only six states and the District of Columbia currently issue marriage licenses to same-sex couples. State supreme courts judicially imposed same-sex marriage in Massachusetts, Connecticut, and Iowa. In Vermont,[11] New Hampshire, the District of Columbia, and New York, legislative action has authorized same-sex marriage.

In November 2012, voters in Maine, Maryland, Minnesota, and Washington will consider ballot initiatives on the definition of marriage.

These state initiatives are taking place in a fluid political environment regarding marriage. After North Carolina’s historic vote, President Barack Obama announced his “evolution” on the definition of marriage. The announcement marked a reversal of his earlier public position that marriage is between one man and one woman.[12] The President also publicly called for the repeal of DOMA,[13] which he directed the Department of Justice to stop defending in 2011.[14] His statement marked the first time in the nation’s history that a sitting President has publicly announced his support for redefining the institution of marriage.

In another first, the Democratic Party has explicitly embraced same-sex marriage in its party platform.[15] It also reiterated its 2008 platform position calling for DOMA’s repeal.[16]

Circumventing Citizens on Marriage

Largely unable to redefine marriage through democratic processes, advocates have resorted to the courts to do so. When vigorously defended, marriage laws have been largely upheld.[17] Nonetheless, at critical junctures, the actions of some judges and executive branch officials at both the state and federal levels have played a prominent role in bringing the marriage debate to this point.

Marriage Undermined by State Courts. The redefinition of marriage in state courts is of relatively recent vintage, transpiring only in the past two decades. For example:

Marriage Undermined by Federal Courts. Challenges to marriage have also been made in federal courts.

During the course of the proceedings, higher courts—including the U.S. Supreme Court[26]—overturned the trial court three times. One legal observer has characterized the trial-level proceedings as “the most egregious performance ever by a federal district judge.”[27] Yet a divided panel of the Ninth Circuit also ruled against Proposition 8. This case is now pending review by the U.S. Supreme Court.

Marriage Undermined by State and Federal Executive Branch Actors.In many cases, federal and state executive branch officials have undermined democratic determinations on the definition of marriage. One prominent example is the Obama Administration’s conduct toward the federal Defense of Marriage Act.

Some state executive branch officials have also undermined democratic judgments regarding marriage at the state level. For example:

On both the state and federal levels, traditional marriage is under assault, regardless of voter sentiment.

Reaffirming a Crucial Principle

Marriage continues to be defined as one man and one woman in the large majority of states. Recent ballot initiatives, such as North Carolina’s marriage amendment, demonstrate strong voter support for the traditional understanding of marriage. Despite this sustained support, however, several courts have ruled against democratically established marriage policies. In several instances, the actions of state and federal executive officials have undermined marriage and the people’s ability to engage the policy questions at issue.

Citizens in the voting booth—not activist courts or agenda-driven bureaucrats—should decide questions about the nature, civic purpose, and public interest in marriage. In the coming months, the Supreme Court will have the opportunity to reaffirm this crucial principle.

SOURCE: The Heritage Foundation

—Dominique Ludvigson is a Research Fellow in the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation.

[1]See Alliance Defending Freedom, Marriage Amendment Vote Percentages: State by State, http://www.alliancealert.org/2011/08/24/marriage-amendment-vote-percentages-state-by-state/ (accessed September 25, 2012).

[2] Hollingsworth v. Perry, 671 F.3d 1052 (9th Cir. 2012), petition for cert. filed, 81 U.S.L.W. 3075 (U.S. July 30, 2012) (No. 12-144) (formerly captioned Perry v. Brown and Perry v. Schwarzenegger).

[3]Section 3 of DOMA states: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S. Code § 7 (1996).

[4] Massachusetts v. HHS, 682 F.3d 1 (1st Cir. 2012).

[5]See Bipartisan Legal Advisory Group v. Gill, 682 F.3d 1 (1st Cir. 2012), petition for cert. filed, 81 U.S.L.W. 3006 (U.S. Jun. 29, 2012) (No. 12-13); HHS v. Massachusetts, 682 F.3d 1 (1st Cir. 2012), petition for cert. filed, 81 U.S.L.W. 3006 (U.S. Jul. 2, 2012) (No. 12-15); and Massachusetts v. HHS, petition for cert. filed, 81 U.S.L.W. 3065 (U.S. Jul. 20, 2012) (No. 12-97).

[6]See Office of Personnel Management. v. Golinski, 824 F.Supp.2d 968 (N.D. Cal., 2012), petition for cert. filed, 81 U.S.L.W. 3048 (U.S. Jul. 3, 2012) (No. 12-16); Windsor v. U.S., 833 F.Supp. 2d 394 (S.D.N.Y. 2012), petition for cert. filed, 81 U.S.L.W. 3048 (U.S. Jul. 16, 2012) (No. 12-63); and Pederson v. Office of Personnel Management, 2012 WL 3113883 (D. Conn. 2012), petition for cert. filed, 81 U.S.L.W. 3087 (August 21, 2012) (No. 12-231).

[7]See National Conference of State Legislatures, “Defining Marriage: Defense of Marriage Acts and Same-Sex Marriage Laws,” June 2012, http://www.ncsl.org/issues-research/human-services/same-sex-marriage-overview.aspx (accessed September 10, 2012).

[8]North Carolina State Board of Elections, Primary Election, Official Results, May 8, 2012, http://results.enr.clarityelections.com/NC/36596/85942/en/summary.html (accessed September 10, 2012).

[9]Hawaii Constitution, art I, § 23 (“The legislature shall have the power to reserve marriage to opposite-sex couples.”).

[10]Hawaii Revised Statutes § 572–1. In an August 2012 decision, a federal district court in Hawaii rejected a federal constitutional challenge to the state’s marriage amendment and laws. Jackson v. Abercrombie, 2012 WL 3255201 (D. Haw. 2012).

[11]In 1999, the Vermont Supreme Court ruled that the legislature must grant full and equal benefits of marriage to same-sex couples. As a result, the Vermont legislature was forced to pass an extensive civil unions law providing same-sex couples virtually all protections and benefits afforded to civil marriage. See Baker v. State, 744 A.2d 864 (Vt. Sup. Ct. 1999). The Vermont legislature eventually adopted same-sex marriage outright in 2009.

[12]Rick Klein, “President Obama Affirms His Support for Same Sex Marriage,” ABC News, May 9, 2012, http://gma.yahoo.com/blogs/abc-blogs/president-obama-affirms-his-support-for-same-sex-marriage.html (accessed September 25, 2012).

[13]Lesa Jansen, “POTUS Weighs in on DOMA and JP Morgan Chase,” CNN, May 14, 2012, http://whitehouse.blogs.cnn.com/2012/05/14/potus-weighs-in-on-doma-and-jp-morgan-chase/ (accessed September 25, 2012).

[14]Eric Holder, “Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act,” letter to Speaker of the House John Boehner, February 23, 2011, http://www.justice.gov/opa/pr/2011/February/11-ag-223.html (accessed September 25, 2012).

[15]Democratic National Committee, “2012 Democratic National Platform: Moving America Forward,” http://www.democrats.org/democratic-national-platform#protecting-rights (accessed September 8, 2012).


[17]Alliance Defending Freedom, “Marriage Legal Landscape,” http://www.alliancedefendingfreedom.org/content/docs/issues/marriage-and-family/Marriage-Legal-Landscape.pdf (accessed October 2, 2012).

[18] Baehr v. Lewin, 852 P.2d 44 (Hawaii, 1993).

[19] Baehr v. Miike, 910 P.2d 112 (Hawaii, 1996).

[20] Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass., 2003).

[21] Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008).

[22] Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).

[23]Grant Schulte, “Iowa Ousts 3 Judges After Gay Marriage Ruling,” USA Today, November 4, 2010, http://www.usatoday.com/news/politics/2010-11-03-gay-marriage-iowa-election_N.htm (accessed September 26, 2012).

[24] In re Marriage Cases, 183 P.3d 384 (Cal. 2008).

[25]See Perry v. Schwarzenegger, 704 F.Supp.2d 921, 997–98 and 1002 (N.D.Cal., 2010). This, despite the fact that Californians had adopted the most progressive domestic partnership laws in the nation, giving same-sex couples all the rights and privileges available to married couples.

[26]The U.S. Supreme Court rebuffed a procedurally irregular, last-minute rules change by the trial judge that would have allowed him to broadcast the proceedings without regard to the abuse and harassment likely to befall witnesses in the case as a result, observing: “The district court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.” Hollingsworth v. Perry, 558 U.S. 183 (2010) (per curiam).

[27]Ed Whelan, “The Most Egregious Performance Ever by a Federal District Court Judge,” National Review Online, August 16, 2010, http://www.nationalreview.com/bench-memos/243693/most-egregious-performance-ever-federal-district-judge-ed-whelan (accessed September 25, 2012).

[28] Gill v. Office of Personnel Management, 682 F.3d 1 (1st Cir. 2012).

[29]For example, see Reply Memorandum in Support of Defendant United States of America’s Motion to Dismiss, Aug. 24, 2009, at 2, in Smelt v. U.S., Case No. SACV09-00286 DOC (C.D. Cal.), http://www.politico.com/static/PPM118_090817_domareplybrief.html (accessed September 25, 2012).

[30]Richard A. Epstein, “Judicial Offensive Against Defense of Marriage Act,” Forbes, July 12, 2010, http://www.forbes.com/2010/07/12/gay-marriage-massachusetts-supreme-court-opinions-columnists-richard-a-epstein.html (accessed September 25, 2012).

[31]See Holder, “Letter from the Attorney General to Congress.”

[32]Brief of Amici Curiae Former Attorneys General Edwin Meese III and John Ashcroft, Golinski v. U.S. Office of Personnel Management (9th Cir. 2012) (Nos. 12-15388 & 12-15409).

[33]Jake Sherman, “House GOP Moves to Defend DOMA,” Politico, March 10, 2011, http://www.politico.com/news/stories/0311/50987.html#ixzz24y70k4Gl(accessed September 25, 2012).

[34]See Wilson v. Ake, 354 F.Supp. 2d 1298 (M.D. Fla. 2005); Smelt v. Cnty. of Orange, 374 F.Supp. 2d 861 (C.D. Cal. 2005), affirmed in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006); Hunt v. Ake, No. 04-1852 (M.D. Fla. Jan. 20, 2005); Sullivan v. Bush, No. 04-21118 (S.D. Fla. March 16, 2005) (granting voluntary dismissal after the Department moved to dismiss); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).

[35]Rachel Gordon, “The Battle Over Same Sex Marriage,” San Francisco Chronicle, February 15, 2004, http://www.sfgate.com/news/article/THE-BATTLE-OVER-SAME-SEX-MARRIAGE-Uncharted-2823315.php (accessed September 25, 2012).

[36]Maura Dolan, “Schwarzenegger Decides Against Defending Prop. 8 in Federal Court,” Los Angeles Times, June 13, 2009), http://articles.latimes.com/2009/jun/18/local/me-gay-marriage18 (accessed September 25, 2012).

[37]See Lazaro, et al. v. Orr, Case No. 12 CH 19718 (Cook County Chancery Court ), and Darby v. Orr, Case No. 12 CH 19719 (Cook County Chancery Court) (filed May 30, 2012).

[38]“Orr, Alvarez Won’t Fight Suits Challenging Gay Marriage Ban,” CBS Chicago, June 14, 2012, http://chicago.cbslocal.com/2012/06/14/orr-alvarez-wont-fight-suits-challenging-gay-marriage-ban/ (accessed Aug. 26, 2012).

[40] Limmer v. Ritchie, Nos. A12-1149 and A12-1258 (Minn. S. Ct. Aug. 27, 2012), http://www.adfmedia.org/files/LimmerOpinion.pdf (accessed September 25, 2012).

[41]Tim Nelson, “Backers Sue over Marriage Amendment Title,” Minnesota Public Radio News, July 9, 2012, http://minnesota.publicradio.org/collections/special/columns/polinaut/archive/2012/07/backers_sue_ove.shtml (accessed September 25, 2012). The news report cited Minnesota State Senator Warren Limmer (R) arguing, “Those words are definitely considered negative and misleading, and I believe they’re created to sway the voters.”

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