Scholars: No legal right to 'gay marriage' in Constitution

Washington D.C., Apr 27, 2015 / 15:28 pm

There is no legal right to "gay marriage" in the Constitution, legal experts asserted, and the Supreme Court should not bypass the democratic process and redefine marriage for all 50 states.

"There's nothing in the U.S. Constitution that requires all 50 states to redefine marriage," said Ryan Anderson, Ph.D., the William E. Simon senior research fellow at the Heritage Foundation.

"Since there's good arguments on both sides of this debate, unelected judges shouldn't simply insert their own policy views about marriage and then declare them required by the Constitution."

Anderson joined attorney Gene Schaerr, J.D., in discussing state marriage laws at the Heritage Foundation April 20.

The panel discussion came a few days before the April 28 oral arguments in Obergefell v. Hodges, a monumental case that could lead to a nationwide redefinition of marriage.

The legal challenge arises from four marriage cases decided by the U.S. Sixth Circuit Court of Appeals in November. In a 2-1 decision, the judges upheld the traditional marriage laws in four states – Michigan, Ohio, Kentucky, and Tennessee – claiming the judiciary did not have the power to define marriage and that the decision should be left to the citizens and the state legislatures.

That ruling was appealed to the Supreme Court, which agreed to take the case and decide if same-sex couples have a legal right to marry under the 14th Amendment, or if the states each have the power to define marriage for themselves.

Dozens of amicus briefs were filed for both the plaintiffs and the respondents by individuals, organizations, states, hundreds of businesses, and the U.S. Department of Justice.

There is no right to same-sex marriage in the 14th Amendment or elsewhere in the Constitution, stressed Schaerr, who is a D.C-based attorney who defended Utah's traditional marriage amendment in the Tenth Circuit Court and once clerked for Justice Antonin Scalia.

Schaerr cited Sixth Circuit Judge Jeffrey Sutton, who earlier ruled in Obergefell v. Hodges that "so far, not a single United States Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the Fourteenth Amendment."

The 14th Amendment states, in part, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Since there is no Constitutional right to marriage, "a state's rejection of that claimed right couldn't possibly be a denial of due process," Schaerr said.

And such state laws do not deprive citizens of equal protection under the law, he continued. Although there is no legal right to same-sex marriage, people are still free to marry someone of the opposite sex, regardless of their own race, religion, or sexual orientation.

"The argument that there is discrimination on the basis of sexual orientation just doesn't work," Schaerr continued.

If the Supreme Court legalizes same-sex marriage in response to popular opinion, it could have long-reaching negative consequences that aggravate, not settle, the debate on the matter, Schaerr suggested, saying that this can be seen through Supreme Court history.

When justices tried to solve heated social controversies in the past instead of letting them be solved by the people, the decisions "backfired spectacularly," he maintained.

"These cases that the Court has before it now are really an attempt to tempt the Court to take away from the people their ordinary right in our Constitutional order to decide difficult policy issues through democratic means."

As an example, he related how in the 1973 decision Roe v. Wade, the Court decided the pressing social question of legal abortion for the country. Citing Justice Ruth Bader Ginsburg, he argued that the ruling "actually provoked a political backlash that is with us to this day."

Anderson agreed and insisted that the matter should be left up to the states as the "laboratories of democracy," in the words of the Supreme Court.

If the states can define marriage through the democratic process, he said, people can see first-hand the consequences of changing marriage and decide accordingly, rather than the Court deciding a legal right to "gay marriage" and forcing everyone to wait for the consequences.

"The Supreme Court justices have no better ability than anyone in America to predict what the outcome will be. They're not a super-legislature," Anderson said.

"There's nothing in the Constitution that tells us which of those two arguments is the better argument," he continued. "The Court should respect the Constitutional authority of states to make marriage policy."