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Two Things the Supreme Court Can’t Say

With oral arguments before the U.S. Supreme Court on the constitutionality of Tennessee’s marriage law less than three weeks away, two recent events should make clear to the Justices two things that for sure they cannot say.

Indiana and the Suspect Class

The first event that the Justices should take note of is the lightning speed at which Indiana’s political leaders did an about-face last week on religious liberty legislation in response to threats of a statewide economic boycott by those who believe sexual acts and gender expression are civil rights.

The reason the Justices should take note of this is that one of the arguments made by proponents of same-sex “marriage” is that laws “limiting” marriage to a man and a woman are unconstitutional, because they are designed to target and withhold political rights and privileges—marriage and its benefits—from a “suspect class” of people, namely, homosexuals.

While it is hard to fathom that anyone would seriously believe that marriage laws, which have existed for hundreds of years, were created to exclude homosexuals from anything, the Supreme Court’s “test” for determining a suspect class makes this argument almost comical.

As the Sixth Circuit Court of Appeals noted in upholding Tennessee’s marriage laws, the Supreme Court has considered “four rough factors in deciding whether to treat a legislative classification as suspect” and legislation negatively affecting the class “presumptively unconstitutional.” One of those factors is whether the asserted class is “politically powerless.”

If the situation in Indiana did nothing else, it proved to the world that those who advocate for the rights of homosexuals are not politically powerless. For the Supreme Court to hold that homosexuals deserve special protection as a suspect class because they are politically powerless would destroy the credibility of the Court.

America Is Ready for Same-Sex ‘Marriage’

A couple of months ago, legal scholars and conservative political commentators were shocked when Justice Ginsburg said that she thought Americans were prepared to accept same-sex “marriage” and that “it would not take a large adjustment” for Americans if the Court ordered same-sex “marriage.”

While Justice Ginsburg apparently does not have the integrity to recuse herself from a decision in which she has expressed her pre-judgment of the case, the second event of which she, along with her fellow Justices, should take note is that twenty-four of the fifty states have just filed briefs with the Court in support of their state’s right to define marriage. That means that some states that have court-imposed same-sex “marriage” are actually fighting for their right as sovereign states to decide their own marriage laws.

Constitutional rights should not float along on the breeze of whatever public opinion might from time to time think about some issue, but, sadly, some Justices on the Court, like Ginsburg, believe that this “breeze” is the breath that makes the Constitution a “living document.” Unfortunately for them, the briefs of these twenty-four states should add an odor to the air she and those on the Court who think like her have been breathing that should make repugnant a belief that America on the whole is ready to adjust to same-sex “marriage.”

While the Justices may well find some constitutional justification for subordinating the sovereignty of the fifty states to their views on homosexuality and marriage, we at least know two justifications that should now be off the table.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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The Constitutionality of Marriage

A report I received earlier this week indicated that lawsuits to strike down state marriage laws have now been filed in almost 30 states. Each is in various stages in the process.  The constitutionality of Tennessee’s marriage law is right now before the U.S. Sixth Circuit Court of Appeals. With so many willing to “give up” the defense of marriage, it was great to see such a strong number of Tennessee’s state legislators willing to stand their ground.

At the end of last week, thirty-seven state representatives and seventeen state senators had a brief in support of marriage filed on their behalf in the Court of Appeals. They didn’t have to do that, since the state is defending Tennessee’s laws. But these legislators wanted to make sure that their particular voice, as lawmakers representing us, was heard as well.

The brief is really excellent. I would encourage you to read it.

But what cannot get lost in all the hoopla over “marriage equality” and “love” is that a constitutional issue is really what is at stake. Marriage is just the context for the constitutional principle that will be decided. And that principle will have a precedential ripple effect far into the future and far beyond marriage. More is at stake than marriage.

As the legislators and the state in their respective briefs have pointed out, if the constitutional principle is that no law can “discriminate” between different classes of people, then there can be no law at all. For example, if the laws do not discriminate between those who steal money and those who don’t, then hold onto you wallet, lock the door, and get your gun!

Laws discriminate all the time. And, fortunately, our U.S. Supreme Court has not reached the logical absurdity that any law that “discriminates” is unconstitutional. Therefore, the real question is whether a law discriminates in an unconstitutional way.

In that regard, the Supreme Court has said it depends on what “right” the law affects or whether there is some “suspect class” against whom legislation ought to be viewed more closely because they are “disfavored.” For instance, because there are three constitutional amendments dealing with issues of race, the Court has said that race is a suspect class. Laws affecting race are given closer scrutiny to determine if they really are designed to achieve a legitimate purpose or just designed to negatively impact those of a certain race.

However, absent those kinds of issues, the courts have said that a law should be upheld if there is a legitimate governmental interest to be served by the law and a reasonable person could rationally believe the law could serve that interest. That is where the marriage cases get interesting.

The Supreme Court has never held that there is a constitutional right to engage in homosexual conduct, and it has never held that those who engage in that conduct are a “suspect class.”

So, under current law, the first question is whether the state has a legitimate interest in ensuring the optimal environment for the rearing of children, namely, an environment in which the child has the nurture and support of both biological parents. In that regard, no one could say, “no.”

Then the question is whether a reasonable person could rationally think this interest  could be furthered by trying to channel conduct that naturally has the potential for procreation into stable, enduring relationships  Remember, only sexual relations between a man and a woman can result in an unintended pregnancy; sexual relations between those of the same sex can never do that.

For marriage to “lose,” the Court would have to conclude that no reasonable person could rationally think that defining marriage as between one man and one woman and then encouraging those relationships over a “hook up” culture would be good for children. But that is exactly what the trial courts in America have been doing.

Let’s hope that the Supreme Court won’t climb to the pinnacle of arrogance by agreeing with them, thereby calling a majority of Americans irrational and unreasonable. And let’s thank these courageous legislators for being willing to tell our courts, on our behalf, not to do that.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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