Putting the authors of legal briefs (which of course are not brief at all) to shame, attorney Gene Schaerr and political scientist Dr. Ryan Anderson have co-written a thorough, accessible ten-page “Memo to Supreme Court: State Marriage Laws Are Constitutional,” published by the Heritage Foundation. Here are some highlights:
First, the advocates of same-sex marriage “have to prove that the man–woman marriage policy that has existed in the United States throughout our entire history is prohibited by the U.S. Constitution.”
The only way someone could succeed in such an argument is to adopt a view of marriage that sees it as an essentially genderless institution based only on the emotional needs of adults and then declare that the U.S. Constitution requires that the states (re)define marriage in such a way. Equal protection alone is not enough. To strike down marriage laws, the Court would need to say that the vision of marriage that our law has long applied equally is just wrong: that the Constitution requires a different vision entirely.
But isn’t this pretty much a done deal thanks to the Supreme Court’s ruling in the Windsor case two years ago? Nope.
Whether it was right or wrong as to DOMA, Windsor strongly supports the authority of states to define marriage: Every single time that Windsor talks about the harm of DOMA, it mentions that the state had chosen to recognize the bond that the federal government was excluding. Every single time, Justice Kennedy expressly said it was Congress’s deviation from the default of deference to state definitions that drove his opinion.
Couldn’t the advocates of same-sex marriage just argue that marriage is a “fundamental right”? Hasn’t that been said before? Yes, but:
a right to marry someone of the same sex does not fit this description. As the Supreme Court explained in Windsor, including same-sex couples in marriage is “a new perspective, a new insight.” Same-sex marriage is not deeply rooted in the nation’s history and tradition; thus—whatever its policy merits—it cannot be a fundamental right under the Due Process Clause.
Whenever the Supreme Court has recognized marriage as a fundamental right, it has always been marriage understood as the union of a man and woman, and the rationale for the fundamental right has emphasized the procreative and social ordering aspects of male–female marriage. None of the cases that mention a fundamental right to marry deviate from this understanding, . . .
But the Court in the past has treated laws adversely affecting gays and lesbians as being animated by “animus,” right? Not so fast: “anyone with passing familiarity with the history of marriage knows that the institution did not arise because of animus toward gays and lesbians,” note Schaerr and Anderson. Moreover, “the Supreme Court, including in Windsor, has never held sexual orientation to be a suspect class and thus has not applied ‘heightened scrutiny’ to laws implicating their interests.”
Even if the Supreme Court did find sexual orientation to be a suspect class, as liberal scholars like Andrew Koppelman have recognized, marriage laws do not discriminate on the basis of sexual orientation anyway. They have a disparate impact on gays, but that is not the Court’s test. The reason Koppelman believes—correctly—that they do not discriminate based on orientation is that they simply do not require checking someone’s orientation at all in determining whether that person will receive the benefits of civil marriage.
But some courts have said there is no “rational basis” for the age-old conjugal definition of marriage. How about that?
The man–woman definition . . . is based on the anthropological truth that men and women are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father.
Compelling interest, narrow tailoring–Schaerr and Anderson cover all the bases. They conclude as they began:
The only way one can establish the unconstitutionality of man–woman marriage laws is to adopt a view of marriage that sees it as an essentially genderless, adult-centric institution and then declare that the Constitution requires that the states (re)define marriage in that way. In other words, one needs to establish that the vision of marriage our law has long applied is just wrong and that the Constitution requires a different vision entirely.
Excellent, comprehensive, and readable in 15 or 20 minutes. Do read the whole thing, available here and as a PDF.