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Justice Kagan’s Selective Legislative History: The Rest of the Story



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During oral argument before the Supreme Court in the Defense of Marriage Act case last week, Justice Elena Kagan contended that the only purpose for the Defense of Marriage Act was “that Congress’s judgment was infected by dislike, by fear, by animus” of homosexuals. After Paul Clement pointed out that Congress was trying to retain a fairly uniform definition of marriage for federal law purposes in the face of a pending radical change that the Hawaii Supreme Court was about to impose, Justice Kagan challenged Clement’s claim, quoting a sentence from the House Judiciary Committee Report that accompanied the Act to the effect that “Congress decided to reflect and honor the collective moral judgment and to express moral disapproval of homosexuality.” “Is that what happened in 1996?” Kagan asked.

What Kagan failed to acknowledge was that the passage — a single sentence out of a 45-page committee report, was actually and explicitly drawn from the governing Supreme Court precedent at the time, Bowers v. Hardwick, which had held that Georgia’s law criminalizing sodomy was constitutional because it served the rational purpose of embodying “the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable”). The Supreme Court subsequently overruled Bowers, holding that the majority’s view of the immorality of a practice “is not a sufficient reason for upholding a law prohibiting the practice,” meaning that Supreme Court precedent now rejects that particular rationale for the statute. But Justice Kagan also failed to acknowledge it was but one of several rationales, not even the first, and certainly not the most developed in the legislative record.

The primary rationale, which relied heavily on the work of Claremont Institute Senior Fellows Hadley Arkes and Bill Bennett, is both profound and persuasive. “The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage,” the report finds. Society recognizes the institution of marriage and grants married persons preferred legal status not to grant public recognition to the love between any two persons, but because of the “central, unimpeachable lesson of human nature” that “our gendered existence, as men and women, offers the most unmistakable, natural signs of the meaning and purpose of sexuality,” which is begetting children. “At its core,” the report concludes (citing Arkes’s testimony), “it is hard to detach marriage from . . . the inescapable fact that only two people, not three, only a man and a woman, can beget a child.” “Civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child-rearing.”

Justice Kagan would do well to consider more carefully the rest of the report, available here. Hopefully, her colleagues already have.

— John C. Eastman is the Henry Salvatori Professor of Law & Community Service and former dean at Chapman University School of Law. He also serves as the director of the Claremont Institute’s Center for Constitutional Jurisprudence (which filed briefs in both marriage cases), and as chairman of the board of the National Organization for Marriage.



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