The power and authority of the Supreme
Court of the United States to review acts and actions of the other two branches
of the Federal government is nowhere to be found in Article III of the
Constitution, the one which defines and describes the Federal judicial branch
of government. It was the fourth United States Chief Justice, John Marshall,
and colleagues on the Court during his long tenure (1831-1835), who essentially
made it up as they went along, in a series of cases ranging from Marbury v.
Madison through McCulloch v. Maryland.
In the first, most significant, case,
Marshall engaged in some very lawyerly if-then, if-then reasoning to accrue
that power to the Court. Without going into the factual details of the
case, we can say that the central feature of Marshall's decision was its
consideration of a power granted to the Court by the Congress to hear certain
original (trial) legal actions. However, Marshall noted that the
Constitution, with certain very well-defined exceptions, limits the Supreme
Court to appellate review, not original powers. Therefore, he declared
that the law under which the case had been brought was "unconstitutional," a
phrase that nowhere appears in the Constitution. And the action, as it
happened of Mr. Marbury versus Mr. Madison, was dismissed.
There was a fair degree of political
kerfuffling about at the time over what had happened. President Thomas
Jefferson, even though the decision in the particular case benefitted him and
his Secretary of State James Madison, did not like what saw Marshall
doing. Nevertheless, he took no significant action against Marshall's
Court and over time the precedents established by it were accepted all
"round. But, one central feature of the set of cases that juridically and
politically secured the Court's power to review, not just the actions of the
Federal government for their Constitutionality, but those of the state
governments as well, was that the decisions of the Court in such matters were
to be made on Constitutional grounds. Did a particular action
of the Federal Congress or Executive Branch, or of any of the three branches of
the government of any state, violate one or more provisions of the Constitution
of the United States? That, clearly, in Marshall's view was what Supreme
Court review was to concern itself with. Which brings us to the "Proposition
8" and "Defense of Marriage Act" cases presently under consideration at the
Court.
Under California's "Initiative and
Referendum" system, "Proposition 8" overturned a decision by the California
State Supreme Court that gay marriage is legal, in California. The
so-called "Defense of Marriage Act" (DOMA) denies a whole series of Federal
benefits to gay couples, even when they are legally married under the laws of a
particular state. DOMA has been declared unconstitutional up the Federal
trial and appeals courts ladder and the Obama Administration refused to defend
it before the Supreme Court on the grounds that it is indeed
unconstitutional. Nevertheless, the House Republican majority took it on
itself to do just that.
The cases are distinct and it is certainly
far from clear, after the oral arguments were held for both on March 26 and 27,
2013, what the right-wing, Catholic, majority on the Court will do. What
is clear is that many of the arguments that are being made both for and against
legalizing gay marriage and/or granting the full protection of Federal law to
gay couples in those states in which gay marriage is legal, have nothing to do
with the Constitution and thus have nothing to do with the role that Chief
Justice Marshall, rightly or wrongly, defined for the Court.
On the "pro" side we hear much about
fairness, and justice, and love, and family, and children. As someone who
very happily spent his teen-age years with two mommies in the
1950s (no less) I am very sympathetic to those arguments. But they
have nothing to do with the Constitution. On the "anti" side we hear much
about "traditional marriage" and how allowing gay marriage will somehow
"destroy the institution of marriage," although explanations of exactly how
that would happen are never clearly given.
What is made clear, over and over again,
from leaders of the anti-gay marriage movement ranging from Speaker of the
House John Boehner to the so-called National Organization for Marriage is that
their positions are based on religious belief and a particular
interpretation of the Christian Bible. Boehner had spoken of never
changing his position on the matter because that is what his church tells him
it should be. In the opening sentence of their mission statement the NOM
states that they have: "a mission to protect marriage and the faith
communities that sustain it [emphasis added]." Their leader, Brian
Brown, talks about how his position is drawn from "Scripture" and "biblical
views of marriage" (1).
Of course any church is entitled to formulate
and abide by its own rules for marriage, and if they don't want to countenance
or recognize same-sex marriage, under the First Amendment they love to
denigrate so much, that is their right. But then there is the institution
of marriage (with provisions for its legal dissolution) that is found in
the civil law that exists on the books of every one of the 50
states. This institution has absolutely nothing to do with religion any
more than state motor vehicle laws do. In every state a couple can walk into
the office of an civil official endowed by that state's law to perform a
marriage ceremony and certify that it is licensable under the law, and get
married. Unless, that is, in most states, they happen to be of the same
sex.
And so, if Chief Justice Marshall's definition
of what the Court's powers are based upon is correct, the central issue before
the Court is not justice or fairness, it is not whether or not gay marriage is
becoming more acceptable nationally (Scalia), or whether, ohmygosh, should the
Court rule that Prop. 8 and/or DOMA are unconstitutional would those rulings
then have to apply to all the states (Roberts), or whether or not 40,000
children in California should have two legally married parents (Kennedy).
And so, there are only two issues that
should be considered here. Both are Constitutional. The first is whether, given
the "no religious establishment" clause of the First Amendment, a definition of
marriage that is clearly based on religious belief, according to its proponents, should, indeed can, be granted any
recognition under the law at all (other than to protect its use for religious
weddings by those who hold to that religious belief under the "free exercise"
provision of the First). The second is, given the fact that each of the
50 states has a large body of civil law concerning marriage, whether or not the
"equal protection" clause of the 14th Amendment applies.
We are talking about religious
determination of civil law and practice here. We are talking about equal
protection under the law here. We are talking here about ending yet
another major element of second-class citizenship, with which this country has
been so burdened in so many different arenas since its founding, which the
equal protection clause clearly prohibits. However, religious
determinism/authoritarianism is on the march in our country. It must be
stopped before it is too late (2). When the issue is before the Supreme
Court it is the defense of the Constitution, of the 1st and 14th Amendments,
that should be at the center of our side's arguments, and nothing else.
-------------------------------------------------------------------------------------------------------
References:
1. Solberg, S.G., "," The New York
Times, http://www.nytimes.com/2013/ 03/23/us/politics/brian-brown-fights-same-sex-marriage-with-zeal-and-strategy.html?pagewanted=all&_r=0
2. Jonas, S., The 15% Solution:
How the Republican Religious Right Took Control of the U.S., 1981-2022: A
futuristic Novel, Brewster, NY, Trepper & Katz Impact Books, Punto Press
Publishing, 2013, at Amazon: http://www.amazon.com/15%25- Solution-Steve-Jonas/dp/0984026347/ref=sr_1_6?s=books&ie=UTF8&qid=1365113393&sr=1-6&keywords=The+15%25+Solution.
1
