Feb 23, 2015, Vol. 20, No. 23 • By TERRY EASTLAND
In case you haven’t noticed, the Constitution is being amended—though not according to the process our supreme law actually provides for. Which is, first, that two-thirds of both houses propose the amendment and, second, that the amendment then be ratified by the legislatures of three-quarters of the states. None of that has happened with the amendment we speak of: Neither house has even considered it, much less voted overwhelmingly to send it to the states for ratification.
The amendment about to be enacted thus will not become the 28th; you won’t find it in our Constitution. But it will reside in our constitutional case law, in a decision by the Supreme Court creating, as you may have guessed, a right to same-sex marriage. The Court recently took cases on the issue. It will hear arguments in April and render its ruling by early summer.
The movement for same-sex marriage has involved more than litigation strategy. The Wall Street Journal recently published a graph showing three “methods” by which same-sex marriage has been legalized in various states. Ballot measures have been used in three states, and state legislation in eight others. Both methods duly respect the authority of the people to decide issues the Constitution does not address—like the definition of marriage. But the third method used—“judicial decision,” in the Journal’s taxonomy—has taken that authority from the people of no fewer than 26 states. The Court’s expected decision this term will take it from the people of yet more; indeed, it will settle the issue in all the states.
We wish we weren’t so convinced of the Court’s likely decision in the several cases before it. But the Court’s four judicial liberals would seem definite votes for a right to same-sex marriage, as would Justice Anthony Kennedy, because of his opinions in cases involving gay rights. The justices also—just recently—actually took a step that is fairly read as indicating support for creating a constitutional right to same-sex marriage.
The action involves Alabama, where one of the state’s federal judges struck down state laws defining marriage as the legal union of one man and one woman. The judge ordered the defendant, Alabama attorney general Luther Strange, not to enforce the laws and denied his request to stay the injunction until the Supreme Court decided the cases now before it. The attorney general took his request for a stay to the federal circuit court of appeals, which also denied it, and ultimately to the Supreme Court, with the same result. Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented.
“When courts declare state laws unconstitutional and enjoin state officials from enforcing them,” wrote Thomas, “our ordinary practice is to suspend those injunctions from taking effect pending appellate review.” Last fall, the Court departed from that practice when it denied several stay applications by defendants seeking review of judgments invalidating state marriage laws. But in other same-sex marriage cases over the past year, the Court followed the ordinary practice and granted stay applications. Thomas distinguished between the cases in which a stay was denied and those in which one was granted, finding that the Alabama case was “like” the latter cases and thus “should have been treated no differently,” especially since the stay would have been in place for no longer than it took for the Court’s decision to be rendered.
That the Court declined the stay request means that same-sex marriages may lawfully take place in Alabama. Given the impact of that decision upon individual lives, it’s hard to imagine the Court would have denied the stay application in February only to say there is no constitutional right to same-sex marriage several months later. Thomas’s candid assessment is that the Court’s action “may well be seen as a signal of the Court’s intended resolution of that question.”
He added: “This is not the proper way to discharge our Article III responsibilities [deciding ‘cases and controversies’].” Indeed it is not. The justices should at least avoid the appearance of deciding cases without briefing and oral argument, of not thinking much about cases of such obvious importance, which would effectively amend the Constitution. More, the justices wanting to create a right to same-sex marriage should be asking themselves where their authority lies for deciding an issue that the Constitution does not speak to and whose resolution it leaves to the people. It’s not, we should say now, found in Article III of the actual Constitution.
Nov 24, 2014, Vol. 20, No. 11 • By TERRY EASTLAND
Let us now praise famous men, or at least one good federal judge, as some recent work of his demonstrates. Jeffrey Sutton is this judge, and he sits on the U.S. Court of Appeals for the Sixth Circuit, which includes the states of Michigan, Ohio, Kentucky, and Tennessee. Earlier this month he announced an opinion for his court in DeBoer v.
8:15 AM, Jun 5, 2014 • By JERYL BIER
The administration for children and families, part of the Department of Health and Human Services (HHS), issued guidance in a memo
8:03 AM, May 20, 2014 • By JERYL BIER
The American Military Partner Association (AMPA) held its first National Gala Dinner in Washington Sunday, and the Department of Defense used the opportunity to tout the rapid advances the military is making in erasing gender distinctions in policies regarding military spouses and partners.
Apr 14, 2014, Vol. 19, No. 29 • By THE SCRAPBOOK
Whenever the topic is broached, proponents of same-sex marriage assert that people who have reservations about redefining the primary building block of civilization are simply on the “wrong side of history.” Now, no one would deny that the political crusade for same-sex marriage is on the march. But it must not actually be historically inevitable. If it were, its advocates could relax and enjoy watching the grand chronological process unfold, like waves eating away at a barrier island. That’s hardly what we’re seeing.
6:41 PM, Apr 3, 2013 • By DANIEL HALPER
President Bill Clinton, who signed the Defense of Marriage Act into law in 1996, is now set to be honored a gay lobbying group in Los Angeles.
"Former President Bill Clinton will be honored with an award for his advocacy for gay marriage, gay and lesbian lobbying group GLAAD said on Wednesday," Reuters reports.
7:38 AM, Apr 1, 2013 • By DANIEL HALPER
Bill Kristol, with Mara Liasson, Ed Gillespie, and Charles Lane, yesterday on Fox:
7:32 AM, Mar 27, 2013 • By JONATHAN V. LAST
Yesterday the Supreme Court heard oral arguments on California’s Proposition 8, which defines marriage as being between couples of the opposite sex. Today they’re hearing them on the Defense of Marriage Act, which defines marriage as a union of one man and one woman at the federal level. Like Roe v. Wade, the high court’s decision on these cases is likely to fuel the culture war for a generation or two, at least. Unlike with Roe, the Court seems to understand that it’s been handed an issue of enormous consequence.
Matt Labash loves him some hatechickenAug 13, 2012, Vol. 17, No. 44 • By MATT LABASH
Last week, at the beach with my family, I deliberately ignored all newspapers. Not for the reason most people do—because print is dead. But because whenever I’m surrounded by salt -water, steamed crabs, and even mediocre fishing, I tend to hold that true happiness is having no idea what chronically bothered people are talking about.
10:40 AM, Jul 26, 2012 • By DANIEL HALPER
In Chicago, Mayor Rahm Emanuel has told Chick-fil-A that the fast-food company is not welcome in his town because "Chick-fil-A’s values are not Chicago values." In other words, because Chick-fil-A ownership believes in traditional marriage, it shouldn't bother opening up shop in Chicago.
11:48 AM, May 15, 2012 • By JOHN MCCORMACK
Last Friday, Gallup released a poll showing the country almost evenly divided on Obama's gay marriage endorsement, but 26% of Americans said Obama's move made them more likely to vote against him while 13% said it made them more likely to vote for him. By a 12-point margin, independents said they were more likely to vote against Obama because of his endorsement of gay marriage.
7:29 AM, May 15, 2012 • By JEFFREY H. ANDERSON
When President Obama came out last week in favor of redefining marriage, he couched his opinion in the context of federalism, saying, “I think it is a mistake to — try to make what has traditionally been a state issue into a national issue.” During that same interview, however, he declared that a bipartisan law designed to protect states from judges who redefine marriage in other states, is “unconstitutional.” It’s very hard to square these two statements.
9:00 AM, May 11, 2012 • By JEFFREY H. ANDERSON
Now that President Obama has announced that, having been for gay marriage (in 1996) before he was against it (in 2004 and 2008), he’s now for it again (in 2012), the Wall Street Journal editorial board comes perilously close to suggesting that Mitt Romney should change his position on the issue.
9:00 AM, May 10, 2012 • By DANIEL HALPER
Vice President Joe Biden is at least part of the reason President Barack Obama came out in favor of same sex marriage yesterday, the president admitted in the interview on the issue with ABC's Robin Roberts:
8:42 AM, May 10, 2012 • By DANIEL HALPER
This morning on ABC, President Obama said that he thinks same sex marriage should be allowed. "I've just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married," the president said.
But he also reaffirmed his belief that same sex marriage is a states' rights issue, and that it's therefore OK for states to ban the practice: