The Upcoming SCOTUS Hearings On Marriage

Supreme CourtOn March 26, SCOTUS will hear arguments on California’s Pro- position 8, Dennis Hollingsworth, et al., v. Kristin M. Perry, et al. (12-144), and on March 27, it will hear arguments on Section 3 of the Defense of Marriage Act (DOMA), United States v. Edith Schlain Windsor, In Her Capacity as Executor of the Estate of Thea Clara Spyer, et al. (12-307).

John C. Eastman has written a legal memorandum for The Heritage Foundation on the two cases in The Constitutionality of Traditional Marriage. Here is his abstract and key points:

In United States v. Windsor and Hollingsworth v. Perry, the Supreme Court will consider the constitutionality of government policies that reflect traditional marriage—that is, marriage as a union between one man and one woman. If the Court does not dismiss these cases on jurisdictional grounds, it should act to uphold traditional marriage. Nothing in the Court’s jurisprudence suggests that the right of same-sex couples to have their relationships recognized as mar- riages is so fundamental as to be protected by the Constitution’s Due Process Clause. Nor does the Equal Protection Clause require that result, given the societal purpose and value of marriage as furthering procreation and child-rearing. Because the Constitution does not speak to this question, it is one that is left to ordinary political processes, not to judicial fiat.

  1. In Windsor and Hollingsworth, the Supreme Court will consider the constitu- tionality of Section 3 of the Defense of Marriage Act, which defined marriage as one man and one woman Hollingsworth challenges for purposes of federal law; and California’s Proposition 8, which reaffirmed traditional marriage in that state.
  2. Because the Obama Administration and the State of California declined to defend these laws, the Court first has to consider whether it has jurisdiction to decide these appeals.
  3. The Court has held that same-sex marriage is not a fundamental right protected by the Due Process Clause. Were the Court to hold otherwise, it would face impossible line-drawing problems in future cases.
  4. The Equal Protection Clause does not compel recognition of same-sex marriages because same-sex couples are not situated similarly, in relevant respects, to opposite-sex couples. Moreover, policies recognizing only traditional marriage further society’s compelling interests in procreation and child-rearing, among other things.

His memorandum includes the history and rationale of DOMA, the history and details of the two cases, and a summary of the jurisdictional issues and constitutional challenges, as well as legal precedent. (The bracketed numerals link to references in the memorandum).

…Because the institution of marriage is the principal manner in which society structures the critically important functions of procreation and the rearing of children, it has long been recognized as “one of the cornerstones of our civilized society.”[36] The Supreme Court itself noted more than a century ago that “the union for life of one man and one woman” is “the sure foundation of all that is stable and noble in our civilization.”[37] This purpose has been recognized throughout our nation’s history.

In California, the situs of the Hollingsworth case, the procreative purpose of marriage has been recognized since the very beginning of the state’s existence as a state….on the eve of the Proposition 8 political fight, the California Court of Appeal recognized that “the sexual, procreative, [and] child-rearing aspects of marriage” go “to the very essence of the marriage relation.”[40]

These cases are not anomalies; rather, they carry forward a long and rich historical and philosophical tradition. Henri de Bracton wrote in his 13th-century treatise, for example, that from the jus gentium, or “law of nations,” comes “the union of man and woman, entered into by the mutual consent of both, which is called marriage” and also “the procreation and rearing of children.”[41] William Blackstone, the great expositor of the law, described the relationship of “husband and wife” as “founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated.”[42] He then de- scribed the relationship of “parent and child” as being “consequential to that of marriage, being its principal end and design.” And John Locke, whose influence on the American constitutional order may be unsurpassed, described the pur- pose of marriage, “the end of the conjunction of the species,” as “being not barely procreation, but the continuation of the species.”[43]

This long-standing view was confirmed by the sociological and anthropological evidence introduced into the trial record. The work of the late Claude Lévi- Strauss, the “father of modern anthropology”[44] and former dean of the Académie Française, forms part of the trial record, for example, and includes this observation: “[T]he family—based on a union, more or less durable, but socially approved, of two individuals of opposite sexes who establish a household and bear and raise children—appears to be a practically universal phenomenon, present in every type of society.”[45] Marriage is thus “a social institution with a biological foundation,” he wrote in another work.[46] Historian G. Robina Quale’s comprehensive sociological survey of the development of marriage from pre- historic times to the present, also part of the trial record, reveals that “Marriage, as the socially recognized linking of a specific man to a specific woman and her offspring, can be found in all societies.”[47]

Murphy v. Ramsey described marriage, “the union for life of one man and one woman,” as “the sure foundation of all that is stable and noble in our civilization.”[61] In 1952, the California Supreme Court recognized that “the institution of marriage” serves “the public interest” because it “channels biological drives that might otherwise become socially destructive” and “ensures the care and education of children in a stable environment.”[62] Justice Hugo Black referred to marriage as a bedrock institution that has long been recognized as “one of the cornerstones of our civilized society.”[63] And the U.S. Supreme Court in Loving described marriage as “fundamental to our very existence and survival.”

When you have the time work through this memorandum. Eastman’s overview provides information that will be helpful for your own understanding and for discussions you may have not only on these hearings, but on marriage itself.


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