Legal Commentary and Analysis
What's Left of the Constitution? California, Marriage, and the Obama Administration
ADF, 3.9.2009
For the second time in less than a year, the California Supreme Court will decide whether to reject the votes of millions of Californians regarding marriage. Proposition 8 implemented an amendment to the California Constitution that states, "Only marriage between a man and a woman is valid or recognized in California." It passed by a margin of approximately 5 percent in November 2008.
Proposition 8 and the Constitution: The majority in California has a right to decide
ADF Alliance Alert, 3.5.2009
. . . Twice, a clear majority of the voters have spoken on this issue; the first time, four justices ignored their voice and stamped their own personal persuasions on the law.
So a ruling against marriage again would not just neuter the uncomfortable legal impact of Proposition 8 – it would effectively reduce every future state election to a straw poll. The Legislature has already shown itself openly hostile to the will of the electorate; the governor has turned a deaf ear to a majority of those who put him in office. Now the state’s highest court will decide if the people of California have a constitutional right to amend their own constitution. At this point, the people have a right to ask: Does the government of this state exist to serve the voters and understand their will, or are the people merely the pawns of an increasingly authoritarian government? . . .
Civil unions lead to same-sex marriage law
HonoluluAdvertiser.com, James Hochberg, 2.6.2009
At some point in their lives, most Americans have studied history. In so doing, we inevitably learn something that we previously did not know. We study and embrace history, erect memorials regarding it, and record it in the hopes of avoiding having it repeat itself. When we need a glimpse of the future, we need only to look to our past. Let's embark on a history lesson with regard to the great debate in Hawai'i over "civil unions."
Religious
Freedoms Under Siege
Christianity.ca, Janet Epp Buckingham, 4.19.2005
Over and over Canadians are being reassured that Bill C-38
will protect religious freedom. But it doesn't and can't.
Civil
Unions: Trojan Horse to Conquer Marriage
ADF, 4.15.2005
Civil unions and the litigation strategy that could be used
to conquer marriage. Is you state legislature taking the bait?
"The
Necessary Amendment"
First Things, Robert H. Bork, August-September 2004
Conservative opinion leaders must recognize that the illegitimacy
of the rampant judicial constitution- making that is before
their eyes changes all the old rules about the place of amendments
in our polity. The comfortable shibboleths about a heavy presumption
against amending the Constitution no longer have much relevance
to the brute facts of our political life. So profound is the
departure from a republican form of government that the presumption
must now be in favor of amending the Constitution whenever
the Court runs wild. Homosexual marriage presents just such
an occasion, but if our politicians wait until the Supreme
Court has done the inevitable, it will probably be too late
for an effective response. Catastrophes ought not to be faced
in a spirit of resignation.
"DOMA
Won't Do It: Why the Constitution Must Be Amended to Save
Marriage"
Family Research Council, Professor Gerard Bradley and William
Saunders, Esq., September, 2004
There are various ways in which same-sex "marriage" might
spread across the country. The first is piecemeal: one state
at a time--similarly to how no-fault divorce laws spread during
the 1960s.
Secondly, same-sex "marriage" might also spread by the migration
of couples demanding recognition of their Massachusetts vows
in other states; or finally, by a Supreme Court opinion declaring
that the Constitution requires the recognition of their union.
As things now stand, the Supreme Court will have the last
word on whether there is a constitutional right for two persons
of the same sex to marry, as well as whether there must be
interstate recognition of such unions. The only way to ensure
that the Court as well as state judges and legislatures do
not provide legal recognition of same-sex "marriage" is to
amend the U.S. Constitution.
Update
on State-Level Same-Sex Marriage Action
Senate Republican Policy Committee, August 10, 2004
The chart that follows describes three kinds of developments
in the states - legislation moving through the statehouses,
ballot initiatives, and pending litigation. It now also contains
any state-specific polling that has been done on the subject.
Don't
Just Sue the Bastards: A Strategic Approach to Marriage
ACLU, Matthew A. Coles Director of Lesbian and Gay Rights
Project, August, 2004
A lot of people don't understand why the ACLU and other groups
working on equality for LGBT people haven't just gone into
court everywhere to get same-sex couples the ability to marry.
But there are good reasons not to do that. . .
Bottom line: The best way to win the marriage for same-sex
couples is to win in as many states as we can before we head
to the Supreme Court . . .
Right now, poorly thought-out lawsuits stand to do far more
harm than good to the LGBT community. We must be smart about
when, where, and how we file lawsuits demanding marriage equality.
The Augustinian Goods of Marriage: The Disappearing
Cornerstone of the American Law of Marriage
Charles J. Reid, Jr., 18 BYU J. Pub. L. 449 (2004)
This Article has several related concerns: it is, first of
all, an historical investigation into one of the principal,
if unacknowledged, sources of American juristic thought on
marriage--the work of St. Augustine, the fifth-century North
African bishop and doctor of the Church, who identified as
the three essential elements of the marital relationship procreation,
fidelity, and lifelong unity, or permanence . . .
This Article is divided into four sections. Part II tells
the story of the development of the Augustinian goods of marriage
and their transmission to the modern era. Part III considers
the crystallization of this set of ideas in the work of nineteenth-century
American commentators and courts. By and large these scholars
and judges never mentioned St. Augustine. But they nevertheless
continued to operate in a mental universe shaped to a considerable
extent by Augustinian ideals. Part IV then considers in some
detail the implications of the same-sex marriage decisions
of Baehr v. Lewin and Baker v. State for
marital theory. Finally, Part V provides a brief conclusion.
In
Defending Marriage: Take the Offensive
Focus on the Family, James Dobson, April, 2004
. . . Nevertheless, I'll offer 10 powerful arguments against
lumbering into this untested and unprecedented social experiment
[i.e. same sex marriage]. . .
Top
10 Reasons to Support the Marriage Affirmation and Protection
Amendment
Concerned Women for America, March 10, 2004
For
Better or for Worse? The federal marriage amendment would
strike a blow for freedom.
Wall Street Opinion Journal, Prof. Mary Ann Glendon, February
25, 2004
President Bush's endorsement of a constitutional amendment
to protect the institution of marriage should be welcomed
by all Americans who are concerned about equality and preserving
democratic decision-making. "After more than two centuries
of American jurisprudence and millennia of human experience,"
he explained, "a few judges and local authorities are presuming
to change the most fundamental institution of civilization
. . . "
A common initial reaction to these local measures has been:
"Why should I care whether same-sex couples can get married?"
"How will that affect me or my family?" "Why not just live
and let live?" But as people began to take stock of the implications
of granting special treatment to one group of citizens, the
need for a federal marriage amendment has become increasingly
clear.
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