The State of Marriage In The States

All told, the people of 41 states have affirmed the conjugal view of marriage by direct voting or through their representatives.”

I’ve been looking for a list of where each state stands on marriage, and via LifeSite News I’ve found two posts at Family Research Council that combine to make a list. I created the map from the lists that are in Peter Sprigg’s post Clarifying the Count of Marriage Amendments and Referenda from May 18, 2012. Read the post for his walk-through of some of the states’ legal battles. I modified that list from May with his post of November 26, 2012, The Irony of the November 2012 Marriage Votes.

Marriage Map March.svg

Color Key (categories from Sprigg’s May 18, 2012 post)

20 states: Number of states in which the state constitution prevents legal recognition of same-sex marriages, civil unions, or domestic partnerships.

20 states + 10 states = 30 states: Number of states in which the state constitution defines civil marriage as the union of one man and one woman.

20 states + 10 states + 1 state = 31 states: Number of states which have amended their state constitutions to prevent legalization of same-sex marriage. (Hawaii amendment (1998) reserving the definition of marriage to the legislature).

20 states + 10 states + 1 state+ 1 state = 32 states: Number of states where voters have, either explicitly or implicitly, rejected the legalization of same-sex marriage. (Iowa judicial retention election (2010), removing state Supreme Court judges who voted to impose same-sex marriage).

20 states + 10 states + 1 state + 1 state + 9 states = 41 states: Number of states where marriage remains the union of a man and a woman under state law. (There was no list in Sprigg’s post, only a final count, and so to the best of my knowledge I identified the remaining 9 states. I’ll let you know if I need to update the map).

Last November Minnesota failed to pass a marriage amendment to its state’s constitution, but its citizens are still fighting to defend marriage. Minnesota For Marriage is an excellent site. Check out their pages Why Marriage Matters, Threat to Marriage, and Myths & Facts.

The National Organization For Marriage has an Advocacy Center and an Across the States page that keeps up with the latest news. There are battles going on in several states right now.

Do not buy the inevitability meme. I deliberately chose to do a series on propaganda because of its continual use by the Left. There’s a reason why those who want to redefine marriage went to SCOTUS. The legislative process is long and slow, and its an uphill battle for them, especially as more of their agenda becomes clear and arguments defending marriage become sharper. The Left has been doing this for a long time—go to the courts and have liberal judges make law by fiat.

Keep working and talking. Don’t be discouraged. Pray.

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SCOTUS Hearings Silent On Marriage & Religious Liberty

Supreme CourtLast December when I wrote that SCOTUS would be hearing the Proposition 8 and DOMA cases, I quoted a 2005 statement by Chai Feldblum, a lesbian who was an Obama recess appointment to the EEOC and who has now been confirmed by the Senate:

“And yet when push comes to shove, when religious liberty and sexual liberty conflict, she admits, “I’m having a hard time coming up with any case in which religious liberty should win.”

The Becket Fund for Religious Liberty filed an amicus brief with SCOTUS stating why Redefining Marriage Threatens Religious Liberty. In analyzing the briefs arguing against marriage, Eric Rassbach of The Becket Fund wrote:

To sum up, the question of religious liberty is very much before the Court, despite the parties’ relative silence. The briefs submitted in opposition to our amicus brief contradict each other—some say nothing to see here, move along; others say there are religious liberty problems but they are justified, or that they just need watching. None of them convincingly refute our brief….

Gerard Bradley at SCOTUS Blog writes, however, that religious liberty was not discussed over the two days of hearings (via Matthew Franck, emphasis added):

…[Charles ] Cooper was often interrupted in mid-sentence. But he succeeded in putting on offer (in my words) the following proposition: gendered marriage laws are justified by the fact – the moral reality – that marriage is gendered. Rede- fining marriage as genderless obviously changes the meaning of marriage across our society. The “harm” of doing that is just the harm that it does to people’s opportunities to know, understand, and to participate in marriage as the gendered relationship that it truly is.

Cooper’s invitation to consider the moral reality of marriage had no takers….

The Justices’ striking moral reticence is confirmed, in a way, by the matter which dared not speak its name over these two days: religious liberty. Nothing what- soever was said about it, perhaps because dealing with the certain and certainly grave damage to religious freedom which same-sex marriage portends would only have added to the list of challenging moral questions.

Sometimes getting the meaning of the Constitution right depends upon the getting the answer to some difficult moral question right. This is true less often than liberals characteristically maintain, but more often than conservatives typically admit. This is one of those occasions. The correct answer to the central constitutional question posed in these cases – does equal protection require same-sex marriage? – depends upon the moral truth about marriage.

The oral arguments in Perry and (to a much lesser extent) in Windsor reveal a Court which is indeed standing over a “cliff,” looking into “uncharted waters.”  The missing ingredient is not, however, a body of social science data. It is a strategically central moral judgment which the Court is obviously not going to undertake. Very well, then: let the people, who operate under no similar felt moral constraint, decide the matter for themselves.

It’s astounding that the issue of religious liberty did not come up because there are Christians who have already suffered loss because of their beliefs regarding marriage. Christians are in the political arena, and our concern must be to be faithful to God at the point in the battle to which He has called us—however public or private, however lowly or influential—we are to be good stewards where He has placed us. Remember “All told, the people of 41 states have affirmed the conjugal view of marriage by direct voting or through their representatives.” A vast majority of the people have decided. Don’t be intimidated by the drumbeat of the media. We must continue to stand and look to gain ground. The answers on the importance of marriage, what it is and why its matters to society, are only becoming more concise and irrefutable. We gain ground with our words and with our lives.

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SCOTUS Hearings on DOMA & the Windsor Case

Wedding Rings White 234x145Today SCOTUS heard arguments on U.S. v. Windsor. In my post yesterday on Proposition 8, I quoted John Eastman’s sorting of the legal issues of both cases. Here are some of his specifics on Windsor:

The plaintiff in Windsor, Edith Windsor, contends that Section 3 deprived her of the estate-tax spousal deduction because she and her lesbian partner, though legally married in Canada and then domiciled in New York, were not recognized as married for purposes of federal law. The U.S. District Court for the Southern District of New York held that Section 3 of DOMA [Defense of Marriage Act] violated the Equal Protection component of the Fifth Amendment’s Due Process Clause. Even before the case was heard by the Court of Appeals for the Second Circuit, requests for Supreme Court review were filed, but the Second Circuit considered the appeal quickly, rushing out a decision affirming the district court’s judgment that Section 3 of DOMA was unconstitutional.

The Second Circuit applied “heightened scrutiny,” a legal doctrine normally reserved for invidious classifications such as those based on race, nationality, and gender. This was a first among the federal appellate courts, and the judges on the Second Circuit panel that rendered the decision were split two to one. Although Windsor and the other DOMA cases currently pending before the Supreme Court all challenge Section 3, the Court’s ruling will likely implicate the constitutionality of Section 2 as well….

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The Heritage pamphlet, What You Need To Know About Marriage: Questions and Answers Driving the Debate, states:

Q. Shouldn’t same-sex partners get benefits like others?

A. We can address specific concerns through specific policies without redefining marriage. For example, the central issue in the upcoming Supreme Court case on the Defense of Marriage Act is the estate tax—the tax you may pay when a friend or family member leaves you assets from their estate. This dispute could have been avoided years ago when Congress had the chance to enact fairer tax policy by eliminating the estate tax and allowing Americans to pass on their wealth, estate-tax free, to their loved ones.

We should resolve specific problems through specific policies. We should have sound tax policy as well as sound marriage policy, and that means recognizing marriage as the union of one man and one woman.

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Matthew Franck summarized today’s hearing at Bench Memos:

The transcript of today’s oral argument in United States v. Windsor, the Defense of Marriage Act case, ranges widely across both jurisdictional issues and the merits of DOMA’s constitutionality. I think the jurisdictional issues are much harder to sort out than the merits are. And it seems clear from the amount of time devoted to these issues, and the character of the justices’ questions and their answers to the responses, that they regard them as tougher than in yesterday’s Perry case on Prop 8. Much of the trouble is caused by the Obama administration’s decision to adopt the untenable position that it would argue in court that Section 3 of DOMA (governing the meaning of marriage in federal law) is unconstitutional, yet continue to enforce it anyway….

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In Justice Scalia: So the Government Can Just Stop Enforcing the Law? Nathaniel Botwinick posted this comment from the justice:

It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there was an opinion of the Office of Legal Counsel, which says that the Attorney General will defend the laws of the United States, except in two circumstances: Number one, where the basis for the alleged constitutionality has to do with presidential powers….The second situation is where no possible rational argument could be made in defense of it. Now, neither of those situations exists here. And I’m wondering if we’re living in this new world where the Attorney General can simply decide, “Yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it.” If we’re in this new world, I don’t want these cases like this to come before this Court all the time. And I think they will come all the time if that’s the new regime in the Justice Department that we’re dealing with.

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On the merits Frank wrote:

Assuming the Court reaches the merits of DOMA, the questions actually become much easier. To the observations Ed has made, I would add that Chief Justice Roberts distinguished himself in his questioning on the merits today.

Roberts twice asked counsel whether one must see “animus” in the votes of the 84 senators (and, implicitly, also the many more House members) who voted for DOMA.  Both SG Verrilli and Windsor’s counsel Roberta Kaplan went on the record saying that “animus” was not or need not have been the driving force behind the passage of DOMA. They tried a softer line, that attitudes toward gay couples suffered from an “incorrect understanding” in 1996. But real animus–meaning something “irrational”–would seem to be necessarily present in order for the Court to find DOMA unconstitutional under the rational basis test.  So this was a significant concession.

Then the chief justice pursued a line of questioning with Windsor’s counsel that probed whether some form of “heightened scrutiny” is merited for the analysis of whether homosexual couples were treated wrongly under the equal protection clause. He wanted to know if all the movement in favor of same-sex marriage in recent years–and even in recent weeks–hasn’t been precisely because gays and lesbians and their allies are extremely powerful politically. Political powerlessness is a key component in a judgment that some test more stringent than rational basis will be used.  If, as Kaplan argued, there has been a “sea change in people’s understandings,” Roberts said, it’s hard to see where that came from, “if not from the political effectiveness of–of groups on your side of the case” (pp. 108-09).

Lots of political power = no need for heightened scrutiny.  Absence of irrational animus = no problem under the rational basis test. As I said, on the merits this one is easy. Which is, of course, never to say that there aren’t five justices who could get this badly wrong!

The rulings on these cases probably won’t be handed down until June. Although law, logic and history all uphold and defend conjugal marriage, this is also a spiritual battle, and the desires and the intents of man blind him to God’s truth and cause him to defy God and the witness God gives to him in the way marriage benefits individuals and society. Which is, of course, why we should continue to pray for God’s help and mercy as the justices deliberate these cases amongst themselves.

Ryan Anderson Debates Marriage On “Piers Morgan Live”

Piers Morgan can’t win on the merits and facts so he works on the set-up. Not only did he bring Suze Orman in to help him along, but he also had Ryan Anderson sitting below them so they could literally “talk down” to Anderson.

Ryan Anderson, however, is a co-author of What Is Marriage? Man and Woman: A Defense, as well as a fellow with The Heritage Foundation, and he’s been writing and speaking constantly over the last few weeks in defense of marriage. He’s accustomed to being in the line of fire.

Start the video and then an arrow in the top left corner will appear with an option to click for closed caption. The Heritage Foundation has coverage and quotes in the column found at my first link.

If you have trouble viewing the video here, it’s also posted at The Heritage Foundation.

Below the jump is video of Ryan Anderson recapping yesterday’s hearing at SCOTUS.
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Another Takedown of the Marriage & the Right Side of History Meme

HistoryAfter posting Marriage & the Right Side of History yesterday, I was amused to see this headline today in a column by George Neumayr:

On the Smug Side of History

A country that stakes its future on lies will not have one. The fashion- able lie of the moment is “gay marriage.” The push to deprive children of mothers and fathers for the sake of “genderless” marriage has never been stronger. The media propaganda about its “inevitability” is unremitting. One would think, judging by all the triumphant rhetoric heard this week, that over 30 states had approved it. In fact, over 30 states have banned it [“All told, the people of 41 states have affirmed the conjugal view of marriage by direct voting or through their representatives.”]….

Notice that the “inevitability” argument for gay marriage is coming from Beltway elites who want judges to decide the issue. Why are they waiting at the back doors of court houses so anxiously if public support for it is so strong? Why do they try and shut down debate so quickly by branding their opponents the moral equivalent of racists if their case is so manifestly clear?

He reports this exchange from yesterday’s hearing (emphasis added):

…Justice Scalia asked Ted Olson, the lawyer who seeks to overturn Proposition 8, when gay marriage crept into the Constitution as a right: “We don’t prescribe law for the future. We decide what the law is. I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?”

Olson couldn’t give a date, to which Scalia replied: “Well, how am I supposed to know how to decide a case, then, if you can’t give me a date when the Constitution changes?”

This exchange highlights what a sham these cases are, and explains why gay-marriage activists don’t want a prolonged debate but a Roe-style judicial coup.

A lie, even if judicially decreed, remains a lie and provides no future for a country forced to swallow it. Plenty of regimes that no longer exist once thought themselves on the “right side of history.” The Romans, at the height of their decadence, saw the Roman empire as indestructible. It ended in ruins. Reality takes revenge on the deluded.

As I said yesterday, progressives have never heeded the reality lessons taught by the events of history or they would give up their statist utopian vision once and for all as untenable. Unfortunately, they keep working to force their delusions on the rest of us.
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Image from The Federalist Papers on Facebook.