The SCOTUS Got It Wrong:
The Defense of Marriage Continues
June 27, 2013
Following the excellent and on-point response of NCBC President, Dr. John Haas, regarding the Supreme Court's ruling on DOMA, all of the ethicists at The National Catholic Bioethics Center, in an effort spearheaded by NCBC Director of Public Policy, Dr. Marie Hilliard, have worked together to produce a follow-up response to the legal ruling:
Yesterday, the Supreme Court of the United States (SCOTUS) failed to recognize that the people of the United States, through their elected legislators and popular referenda, have lawmaking authority under our Constitution. As demonstrated in 38 states, the people of the United States understand, as the courts apparently do not, that it is impossible to redefine marriage. From time immemorial, the unique and life-giving relationship of a man and a woman in marriage has been protected by society because of the unique contribution that marriage makes to the common good, and especially to the good of children. Children are the fruit of marriage, who need protection and nurturing for the benefit of current and future society. Claims of “equal protection” have nothing to do with this issue, as there is nothing equal to the marriage between a man and a woman.
Despite these facts, SCOTUS, in its United States v. Windsor ruling, held that the federal Defense of Marriage Act (DOMA) violates the Equal Protection component of the Due Process Clause of the 5th Amendment of the United States Constitution. The ruling, while correctly speaking to the procedural right of states to establish their own laws, erroneously finds that DOMA impinges on states’ rights to define marriage. The ruling therefore wrongly forbids the Congress from defining marriage at the federal level. This not only represents a contradiction in law, but a misunderstanding of the concept of federalism. If federal policies should not automatically become state policies, neither should state policies automatically become federal policies.
All is not lost, as the SCOTUS ruling stopped short of mandating the recognition of same-sex marriages across state lines: it left intact Section 2 of DOMA allowing each state to continue to recognize or not same-sex marriages contracted in other states. Thus, the discussion and debates will continue, not only at the state level, but also in the United States Congress, which had promulgated DOMA. Yet this is small consolation, given the tenor of the majority opinion, written by Justice Anthony Kennedy. In his opinion, Kennedy held that the view of the millions of his fellow citizens who favor traditional marriage is based on discrimination which demeans and injures homosexuals. This is manifestly false and misleading.
SCOTUS also issued a second ruling, Hollingsworth v. Perry. This addressed California’s Proposition 8, the second of two ballot initiatives in which the people of that state defined marriage as between one man and one woman. Proposition 8, was upheld by the California Supreme Court. However, it was ruled unconstitutional under the Due Process and Equal Protection Clauses of the 14th Amendment of the United States Constitution by both the United States District Court for the Northern District of California (a single judge) and the Federal Ninth Circuit Court of Appeals. Thus, both courts refused to uphold the will of the people concerning a legally adopted constitutional amendment within the State of California. Since California state officials refused to defend their own state Constitution, the proponents of Proposition 8 sought and were granted standing as petitioners in both the District Court and the Ninth Circuit Court of Appeals. These same petitioners appealed the ruling of the Ninth Circuit Court of Appeals to SCOTUS.
While not ruling on the merits of the case, SCOTUS refused to recognize the standing of the petitioners, referring the case back to the Ninth Circuit Court of Appeals. SCOTUS also vacated the ruling of the Ninth Circuit Court of Appeals, but not the District Court ruling which applied only to the Northern District of California, thus leaving the rest of the state's law intact. California’s Constitution states that all laws that have not been overturned by a federal court of appeal must be enforced. Thus, since SCOTUS vacated the ruling of the Ninth Circuit Court of Appeals, same-sex marriage remains illegal in most of California. Despite this legal fact, the Governor of California has directed that all counties in the state of California issue marriage licenses to same-sex couples. Debate will continue at the state level. The citizens of California, and not the courts (and more egregiously not a single trial judge), have the right to decide what they legally will recognize as marriage in their own state.
When the “Equal Protection” clauses are selectively applied by judges no one is protected. One need only review the ever-growing case law and government policies against those who are attempting to stand up for traditional marriage: Catholic adoption agencies, faith-based marriage pavilions, and private wedding vendors all are facing discrimination under the heading of “equal protection.” The rights of conscience and of religious freedom are at the very core of our nation’s history and the tradition of self-government. We must continue to bring these principles forward as we work to advance the truth concerning marriage and its importance to a well-ordered society.
This is just another example of why it is so important to participate in the U.S. Bishops’ Fortnight for Freedom to defend marriage, freedom and the rule of law.
 United States v. Windsor, 570 U.S. ___ (2013).
 Pub.L. 104–199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. § 7 and 28 U.S.C. § 1738C.
 Hollingsworth v. Perry, 570 U.S. ___ (2013).
 The wording of Proposition 8 was precisely the same as that which had passed in Proposition 22 in 2000, as an ordinary statute and not a state constitutional amendment as in Proposition 8. Proposition 22 had been invalidated by the State Supreme Court in 2008. See: In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384].
 Strauss v. Horton 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48.