The Supreme Court wrapped up two days of arguments on the definition of marriage on Wednesday, with a leading advocate of traditional marriage expecting rulings that will be narrow in scope but may well favor same-sex marriage.
The justices heard oral arguments on Tuesday about the constitutionality of Proposition 8, the 2008 California ballot initiative passed by voters that enshrined traditional marriage in the state constitution. On Wednesday, the court considered the Defense of Marriage Act (DOMA), the federal law passed in 1996 that defines traditional marriage as the law of the land but allows states to reach their own definitions and protects states from being forced to recognize marriages legal in states that have different definitions of the institution.
Mathew Staver is chairman of Liberty Counsel and has argued in defense of traditional marriage in state courts around the nation. He offered his analysis of this week’s proceedings, explained why he was gravely disappointed in the performance of the attorney defending Proposition 8 and painted a picture of what America would look like with legalized gay marriage based on what we’re already seeing in the states where the institution exists.
Staver says trying to guess what the Supreme Court will rule based on oral arguments is a risky proposition, as evidenced by many people assuming last year’s health care ruling would strike down the individual mandate and perhaps the entire Obama health only to be proven wrong in the final verdict.
Nonetheless, Staver says the justices seem very reluctant to make any sort of sweeping declaration about the definition of marriage. However, he fears the shaky legal standing of those defending traditional marriage in California and at the federal level might lead to limited wins for those supporting gay marriage.
In the California case, the state attorney general declined to defend the law approved by voters so private groups are filling that role instead. President Obama’s Justice Department announced it was no longer fighting to uphold the Defense of Marriage Act. House Republicans picked up the slack in that case.
“So the question is, ‘Are these cases even supposed to be before the High Court?’ That’s a question the court is asking and seems to be very troubled by. They might ultimately punt on this issue and might not even reach the merits of the case,” said Staver.
If standing is rejected for the defense on both cases, the lower court rulings stand. Staver says the impact of that could be rather limited, with gay marriage becoming legal only in the northern district of California and the Defense of Marriage Act being struck down only in the southern district of New York. However he says the wording of the court’s ruling will make a huge difference, particularly on DOMA.
“If they essentially set up a sitting duck, where all you have to do it file suit in a broader area where you don’t have standing and use the Supreme Court’s language against it, then you could basically pick off the federal Defense of Marriage Act in a different way,” said Staver, who sees Justice Anthony Kennedy lining up against DOMA.
“Justice Kennedy has made a suggestion that DOMA violates states’ rights. I think that’s obviously wrong. It doesn’t violate any state’s rights at all. States don’t have the right to define what kind of federal benefits its citizens are going to have. They can define what kind of state benefits they’re going to have and DOMA doesn’t interfere with that,” said Staver. “I think DOMA’s constitutional. There’s legitimate reasons and rational reasons for having this definition of marriage in our federal Defense of Marriage Act.”
Staver says it’s not out of the question for the justices to issue a broader ruling in favor of gay marriage, a move that he says would compromise the integrity of the court.
“I think that if the court goes too far either in the Proposition 8 case or the DOMA case, in my view it will undermine the legitimacy of the court, making it an illegitimate arbiter of the rule of law and transforming it or morphing it into simply a political machine,” said Staver, who says the Supreme Court has issued political decisions in the past on rulings such as Roe v. Wade and last year’s Obamacare finding.
The merits of the traditional marriage argument are strong in both cases according to Staver, but he was not at all impressed by the oral presentation in defense of Proposition 8 by attorney Charles Cooper.
“Cooper did a terrible job, both in terms of his oratory delivery and was horrible on the substance,” said Staver. “He was asked a question, ‘What is the reason why marriage is different or unique? Why would states want to protect marriage?’ He didn’t come up with an answer. (Justice Antonin) Scalia then threw out the answer about how children do better when they’re raised with a mom and a dad,” said Staver. “They didn’t know why that has not been presented in the brief. (Justice Elena) Kagan and Scalia had mentioned that to Cooper and Cooper had a home run that he could have knocked out of the park.”
Staver says Cooper failed to make a stronger argument because of an attempt to argue the case on limited grounds.
“Unfortunately, they have positioned this case from the very beginning, which is the reason Liberty Counsel wanted to intervene in this case, as a very marriage-lite kind of situation. They haven’t really wanted to address the issue of homosexuality and they haven’t really wanted to address the difference that children have when they’re raised in a home with a mom and a dad as opposed to two men or two women. That’s a significant difference and it’s a significant reason, not just for procreation which obviously is essential, but also for creating the best environment for the well-being of children,” said Staver.
While the discussions of this week’s cases center on the legal arguments and possible rulings, Staver says there are very real, very negative consequences to gay marriage being legalized in these decisions or at any time in the future. He says evidence from the states where gay marriage is legal paints a sobering picture for anyone who doesn’t agree with the gay agenda.
“If the Supreme Court went the wrong way it would be catastrophic because it would literally reshape America. It would undermine marriage and the institution of marriage. We’ve seen that in the Netherlands that adopted a same-sex civil union type of arrangement in 2000. We’ve seen information that’s coming out of Norway, Denmark and Sweden where marriages are simply falling apart. Children are being born out of wedlock. Males are not committed to the marriage relationship. When you have children being born out of wedlock at a greater rate, what you ultimately have is a dumbing down of the economy, a weakening of the economy. You have a damaging of the children and the family structure. What you have is a significant breakdown of the very core of society,” said Staver.
“Moreover, it would put this homosexual agenda on a direct collision course with the exercise of religion. We saw what happened in Massachusetts, and it’s just one of many, many examples of where same-sex marriage and same-sex unions come into play. Catholic charities have had to get out of the adoption ministry because they’re not going to violate their religious beliefs and place children in homes with same-sex couples. You see that with people who run bed and breakfasts, wedding photographers, cake decorators and it goes on and on and on, where you’re going to have to choose between your profession or same-sex agendas,” he said.
“Then you look at the public schools. Parental rights will be undermined. Children as young as kindergarten will be forced to have information fed to them about, not just tolerance and alternative families which is bad enough with regards to re-definition of the family, but that same-sex, aberrant sexual behavior is normative, good and healthy. That’s the kind of thing that you’re going to see in the public schools and we’re seeing it already in some of these states like Massachusetts that have adopted same-sex marriage,” said Staver.
“This would be on a nationwide basis. It would be catastrophic. I think it would ultimately be the beginning of the end of the United States of America as we know it,” he said.