Should marriage be gay or just straight?

U.S. Supreme Court to Consider Constitutionality of Same-Sex ‘Marriage’

PRESS RELEASE FROM “NEW YORKERS FOR CONSTITUTIONAL FREEDOM” – The Supreme Court of the United States is scheduled to hear two important and controversial cases this week that involve same-sex “marriage.” The first is Hollingsworth v. Perry, in which the Ninth Circuit Court of Appeals held California’s voter-approved marriage protection amendment (known as Proposition Eight) to be unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Oral argument in Hollingsworth is scheduled for Tuesday, March 26, 2013. The second case is Windsor v. United States, in which the Second Circuit Court of Appeals held the federal Defense of Marriage Act (DOMA) unconstitutional under the equal protection guarantees of the Fifth Amendment. Oral argument in Windsor was scheduled to take place Wednesday, March 27, 2013.

Rev. Jason J. McGuire, Executive Director of New Yorkers for Constitutional Freedoms, made the following comments concerning the two Supreme Court cases: “New Yorkers for Constitutional Freedoms looks forward to this week’s Supreme Court oral arguments in the same-sex ‘marriage’ cases. The legal arguments in support of both Proposition Eight and the Defense of Marriage Act are strong.”

In hearing these two cases, the Supreme Court has the opportunity to uphold four very important principles.

The First Principle at Issue Is the Principle of State Sovereignty.

Under the federalist system set up by the Framers of the Constitution, states have the authority to amend their own state constitutions without undue interference from activist federal judges. More than 7,000,000 Californians voted in favor of Proposition Eight, in spite of many well-funded efforts to dissuade them from doing so. As a matter of state sovereignty, Proposition Eight should be left undisturbed.

The Second (Related) Principle Is the Principle of Judicial Restraint.

Over the past several decades, advocates of same-sex behavior have sought to use the courts as a mechanism for overriding the will of the people in promoting a same-sex agenda. Unfortunately, some courts have given in to this approach by legislating their own policy preferences from the bench, or by allowing political or social trends to influence their decisions. Justice Clarence Thomas is an outstanding example of a Supreme Court Justice who understands that the Court’s role in constitutional cases is limited to determining whether the challenged law is unconstitutional. It is hoped that the Supreme Court will follow his lead and decline to allow pressure from politicians and the media to affect its decisions in the marriage cases.

The Third Principle Implicated in this Week’s Cases Is the Principle of Rational Basis Scrutiny for Equal Protection Cases Regarding Classifications Based on Sexual Orientation.

The Second Circuit Court of Appeals has invited the Supreme Court to review equal protection claims regarding sexual orientation using heightened scrutiny, which would make it more likely that the Court would invalidate DOMA and other similar state statutes. Historically, the Court has applied heightened scrutiny to laws that make classifications relating to groups that have suffered a history of discrimination, that possess a common immutable characteristic, that are powerless to protect themselves through the political process, and that are not inhibited from contributing to society due to their distinguishing characteristic. Sexual orientation fails this test, for multiple reasons. Therefore, the Court should decline to apply intermediate scrutiny to cases involving sexual orientation and should continue to apply rational basis scrutiny to such cases.

The Fourth Principle Affecting this Week’s Marriage Arguments Is the Principle that There Is a Rational Basis for the Enduring Opposite-Sex Definition of Marriage.

In hearing a constitutional case under rational basis review, the Court must consider whether the government action that is being challenged is rationally related to a legitimate government interest. Regarding marriage, the legitimate government interest is its interest in the well-being of children. Both Proposition Eight and DOMA are rationally related to that interest because they encourage the formation of family structures that provide children with a mother and a father. From the perspective of rational basis review, the marriage cases are easy.

New Yorkers for Constitutional Freedoms encourages the Supreme Court to apply rational basis review to Proposition Eight and to DOMA, to reverse both Court of Appeals decisions, and to find both Proposition Eight and the Defense of Marriage Act to be constitutional. The Court should not seek to find a nonexistent “middle ground,” and should not create a second Roe v. Wade by removing the marriage issue from the political process.

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