Skip to content

Poove And Marriage

26 March 2013 @ 13:50

I have to admit that I have not been closely following the various arguments being put forward in the Prop 8 case that is being argued before the Supreme Court today, but Ed Whelan’s remarks over at NRO struck me as very interesting. I don’t know if I’m just rehashing an old argument when I quote him below, but it was one I had not heard of until this morning.

This is worth quoting in full:

Some early reports from today’s oral argument indicate that some justices may be inclined to rule that Prop 8 proponents lack standing to defend Prop 8 and that the Court therefore lacks jurisdiction to hear the case. A few quick thoughts:

1. I explain in this extensive post from two days ago why I believe that the argument that Prop 8 proponents lack standing is wrong.

2. I’d be cautious about inferring from the oral argument that there is a majority to rule against standing. If there is not a majority, the Court would of course proceed to the merits.

3. A ruling that Prop 8 proponents lack standing would mean that the Ninth Circuit also didn’t have jurisdiction. Further, as UC Davis law professor Vikram Amar (a former Blackmun clerk and not a conservative) and I both discussed two years ago, a ruling that Prop 8 proponents lack standing may also compel the conclusion that the district-court proceedings lacked the adverseness needed under Article III—and that Judge Walker’s judgment should therefore be vacated in its entirety. Now that would be a fitting conclusion. Indeed, for the reasons I spell out in my amicus brief, that result would be the proper one whether or not it is compelled.

Do any of you have any thoughts on this line of argument? Have you done any research?

-Here’s an interesting exchange [starting at page 37] between Justice Scalia and Ted Olson, advocate for ‘gay marriage’ [tip of the fedora to William Jacobson for the link to the transcript (PDF)]:

MR. OLSON: The California Supreme Court, like this Supreme Court, decides what the law is. The California Supreme Court decided that the Equal Protection and Due Process Clauses of that California Constitution did not permit excluding gays and lesbians from the right to get married —

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. I’m curious, when —
3 when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.) When do you think it became unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional —

JUSTICE SCALIA: That — that’s not when it became unconstitutional. That’s when they acted in an unconstitutional matter — in an unconstitutional matter. When did it become unconstitutional to prohibit gays from marrying?

MR. OLSON: That — they did not assign a date to it, Justice Scalia, as you know. What the court decided was the case that came before it —

JUSTICE SCALIA: I’m not talking about the California Supreme Court. I’m talking about your argument. You say it is now unconstitutional.


JUSTICE SCALIA: Was it always unconstitutional?

MR. OLSON: It was constitutional when we — as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that —

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then —

MR. OLSON: Because the case that’s before Official you —

JUSTICE SCALIA: — if you can’t give me a date when the Constitution changes?

MR. OLSON: — in — the case that’s before you today, California decided — the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California, and then the Californians decided in Proposition 8, wait a minute, we don’t want those people to be able to get married.

CHIEF JUSTICE ROBERTS: So — so your case — your case would be different if Proposition 8 was enacted into law prior to the California Supreme Court decision?

MR. OLSON: I would make — I would make the — also would make the — that distinguishes it in one respect. But also — also — I would also make the argument, Mr. Chief Justice, that we are — this — marriage is a fundamental right and we are making a classification based upon a status of individuals, which this Court has repeatedly decided that gays and lesbians are defined by their status. There is no question about that.

JUSTICE SCALIA: So it would be unconstitutional even in States that did not allow civil unions?

MR. OLSON: We do, we submit that. You could write a narrower decision.

JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those —

MR. OLSON: I don’t — when — it seems to me, Justice Scalia, that —

JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.

MR. OLSON: I — I submit you’ve never required that before. When you decided that — that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?

JUSTICE SCALIA: 50 years ago, it was okay?

MR. OLSON: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.

JUSTICE SCALIA: I can’t either. That’s the problem. That’s exactly the problem.

MR. OLSON: But what I have before you now, the case that’s before you today, is whether or not California can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that — that marriage gives them. It — it is — it is not an answer to say procreation or anything of that nature, because procreation is not a part of the right to get married.

When did ‘gay marriage’ become unConstitutional? William Jacobson reminds us that over at Volokh they conducted a reader poll on this back in 2010 and the results are interesting [as are the comments, per usual]. Also check out this other post by

-Over at TOM, Stacy McCain offers an appropriate quote from Pope Leo XIII’s encyclical On Christian Marriage — Mystery.

As a compliment to that, I offer this from Pope Pius XI in his encyclical On Christian Marriage — Chaste Wedlock.

…let it be repeated as an immutable and inviolable fundamental doctrine that matrimony was not instituted or restored by man but by God; not by man were the laws made to strengthen and confirm and elevate it but by God, the Author of nature, and by Christ Our Lord by Whom nature was redeemed, and hence these laws cannot be subject to any human decrees or to any contrary pact even of the spouses themselves.

A is A; you can call it B, but is will always and forever be A.

Marriage is something that can only occur between a man and a woman because that is it’s definition.

At one time, long ago, people believed that a man could marry more than one woman. God allowed this for a time until He believed that they were ready to know that Marriage could only be between one man and one woman. As Pope Pius XI explains:

Wherefore, conjugal faith, or honor, demands in the first place the complete unity of matrimony which the Creator Himself laid down in the beginning when He wished it to be not otherwise than between one man and one woman. And although afterwards this primeval law was relaxed to some extent by God, the Supreme Legislator, there is no doubt that the law of the Gospel fully restored that original and perfect unity, and abrogated all dispensations as the words of Christ and the constant teaching and action of the Church show plainly. With reason, therefore, does the Sacred Council of Trent solemnly declare: "Christ Our Lord very clearly taught that in this bond two persons only are to be united and joined together when He said: ‘Therefore they are no longer two, but one flesh’."

A thing is what it is — to claim it is anything else than what it is, is to deny Reality, to ignore Truth.

  1. Adobe_Walls permalink
    26 March 2013 @ 17:14 17:14

    Don’t propositions in Kali amend the state constitution? If so how could any court declare it unconstituional unless it violates the federal constitution? Who made homosexuals a class? When did “class rights” as distinct from individual rights come into existence?
    What this country’s judiciary system needs at every level is a little more Judge Roy Bean and a lot less Thurgood Marshal.

    • 26 March 2013 @ 18:23 18:23

      What we need to do is erect a few scaffolds and frog march a large of number of our lawless judiciary up to dance on air. The courts have expunged rule of law in this country, except for those who are not favored politically, or aren’t rich.

  2. 26 March 2013 @ 18:26 18:26

    Ted Olson is an idiot. What he is pushing is anti-law and he knows it. He’s bought into an idea that is not just unconservative, but anticonservative. That’s the kind of men that Bush surrounded himself with, and we still reap the shame and frustration caused by lesser men.

    This is not about raising anyone up. It’s about tearing down. Olson is a dupe that knows better, or at least knows enough to know better. He’s a shame to his profession and his party.

  3. njartist49 permalink
    27 March 2013 @ 16:50 16:50

    “When the Constitution began to require gay marriage?” Never. This nation and the Republic are founded on the Natural Law: the revealed laws of Yahweh: the commandments, statutes, and judgments of God; not the so-called wisdom of men which is Roman natural law. It is the revealed law of God to which the Declaration of Independence appealed.

    My understanding is that jurists once held that any law that runs counter to the Natural law – the common law – is void: it is by its very nature non-law.

    The question then becomes, “when was the constitution removed from its Natural Law foundation and when was anti-law put in its place?” Can the constitution even be said to support legislation or rulings which enact the anti-law; would it even be the same constitution; for the right protected by the constitution and the laws passed in accordance with the Natural Law now become wrong under the anti-Natural Law?

    Can B being based on and defined by A remain the same when A is removed and replaced by non-A?


  1. SCOTUS, Prop. 8, The Full Faith And Credit Clause | The Camp Of The Saints

Comments are closed.

%d bloggers like this: