My Response to Supreme Court Decision on Marriage

Those who framed our constitutional government recognized that there was a need for balance between the various governmental institutions. During a crucial time at the Constitutional Convention in Philadelphia in July of 1787, the Convention was deadlocked over the issue of representation. Quoting from the United States Senate website, "July 16, 1787, A Great Compromise:"

In the weeks before July 16, 1787, the framers had made several important decisions about the Senate’s structure. They turned aside a proposal to have the House of Representatives elect senators from lists submitted by the individual state legislatures and agreed that those legislatures should elect their own senators. 

By July 16, the convention had already set the minimum age for senators at thirty and the term length at six years, as opposed to twenty-five for House members, with two-year terms. James Madison explained that these distinctions, based on “the nature of the senatorial trust, which requires greater extent of information and stability of character,” would allow the Senate “to proceed with more coolness, with more system, and with more wisdom than the popularly elected branch.” 

The issue of representation, however, threatened to destroy the seven-week-old convention. Delegates from the large states believed that because their states contributed proportionally more to the nation’s financial and defensive resources, they should enjoy proportionally greater representation in the Senate as well as in the House. Small-state delegates demanded, with comparable intensity, that all states be equally represented in both houses. When Sherman proposed the compromise, Benjamin Franklin agreed that each state should have an equal vote in the Senate in all matters—except those involving money.

Over the Fourth of July holiday, delegates worked out a compromise plan that sidetracked Franklin’s proposal. On July 16, the convention adopted the Great Compromise by a heart-stopping margin of one vote.

The Senate article further explains the Great Compromise as follows:

Their so-called Great Compromise (or Connecticut Compromise in honor of its architects, Connecticut delegates Roger Sherman and Oliver Ellsworth) provided a dual system of congressional representation. In the House of Representatives each state would be assigned a number of seats in proportion to its population. In the Senate, all states would have the same number of seats.

Another crucial issue in the formation of our system of government was also established by the Constitution; the Separation of Powers. The history of our government since the passage of the Constitution has been, in part, a struggle between the three governing bodies: the President, the Congress and the Supreme Court. When the balance of power shifts towards any one of these entities, at the expense of the will of the people, we are in danger of tyranny.

One idea that came from the Constitutional Convention concerning the Separation of Powers, was to organize the Congress with a system of checks and balances through different methods of representation and that the other branches of the government would also moderate each other's actions. To refer to a quote from James Madison in the Federalist Papers, No. 51 (1788):

If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

I speak about this subject both as an experienced trial attorney who has taught and argued constitutional law, and also as an active member and supporter of The Church of Jesus Christ of Latter-day Saints. My comments are not made as a representative of the Church in any capacity. The position of the Church has been made clear in press releases available on the LDS.org website. I wholeheartedly support and affirm the position of the Church.

The danger we face as citizens is not so much wrapped up in any one decision of the Supreme Court as it is tied more strongly to the Rule of Law and the ability of the citizens of this country to govern themselves through a representative system.

In reading a number of commentaries about the recent Supreme Court decision, it was interesting to note that very few news articles mentioned the name of the case and almost none referred to the actual Court opinion. For reference, here is the name of the case and a link to the Slip Opinion:

Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. Argued April 28, 2015, Decided June 26, 2015.

I have a somewhat unique background in litigation and court decisions about marriage issues. Some of my ancestors were known as polygamists and convicted in the Federal Courts of unlawful cohabitation. One, that I know of, was sent to prison after his conviction. The law then and now, concerning so-called polygamy, is based, in part, on a series of statutes passed by the United States Congress including the Morrill Anti-Bigamy Act of 1862 (37th United States Congress, Sess. 2., ch. 126, 12 Stat. 501) and a subsequent law entitled the Edmunds-Tucker Act of 1882 and other legislation. The Edmunds-Tucker act declared "polygamy a felony, revoking a polygamist's right to vote, making them ineligible for jury service, and prohibiting them from holding political office. These restrictions were enforced regardless of whether an individual was actually practicing polygamy, or merely believed in the Mormon doctrine of plural marriage without actually participating in it. All elected offices in the Utah Territory were vacated, an election board was formed to issue certificates to those who both denied polygamy and did not practice it, and new elections were held territory-wide." See Wikipedia: Latter Day Saint polygamy in the late-19th century. The climax of this legislation and the subsequent decision of the Supreme Court was that all of the property of the Church was confiscated by the Federal Government in 1887.

The constitutionality of that act and the seizure of church property was upheld by a Supreme Court decision in a case called Reynolds v. United States decided in 1890.

Years before the decision of the Supreme Court, an army under the direction of General Albert Sidney Johnston (who was to fight for the South in the Civil War) was sent to Utah to enforce the Federal Law and to "quell the Utah insurrection." This event is known as the Utah War.

In light of this history, only briefly outlined here, it is not surprising at all that the Church and its members would be concerned about the recent Supreme Court decision on a similar topic; marriage. The concerns expressed that this Supreme Court decision could result in active persecution of the Church and its members is firmly based in history. What happened before, could happen again.

The dissenting opinions to the decision of the Supreme Court in Obergefell strike directly at the issues I raise above. Quoting from the dissent by Justices, Roberts, Scalia, Alito and Thomas:

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered).

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. 

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are? 

The dissent further quotes Justice Curtis in his historic dissent to the Court's decision in the case of Dred Scott v. Sanford, 19 How. 393 (1857) as follows:

Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Id., at 621

Exactly my point. I respectfully agree with the dissent. Who do we think we are? I would encourage all who are concerned about the long-term ramifications of the Court's decision to read and re-read the dissent.