This morning, former Solicitor General Paul Clement resigned from the law firm of King and Spalding after it caved in to pressure from activists and dropped its contract with the House of Representatives to defend the federal Defense of Marriage Act, known as DOMA. We had reported earlier on the House of Representatives hiring Paul Clement  and King and Spaulding to defend DOMA here.  The House was forced to step in to defend DOMA after President Obama and the Department of Justice announced that they would no longer defend DOMA in court.

Although Clement has left the law firm, he will continue to defend federal DOMA.   Ed Whelan has weighed in with some excellent commentary here.  It is appalling that King and Spalding would capitulate to the brute ideological pressure of those who seek to redefine marriage.   DOMA is sound public policy, and there are many grounds on which to defend DOMA as constitutional.

The Speaker of the House announced today that Paul Clement will defend the federal Defense of Marriage Act (DOMA) in current court challenges. Paul Clement served as Solicitor General under President George W. Bush and is well known as one of the most experienced and effective Supreme Court advocates in the nation.

The House was acting in response to President Obama’s announcment last February that he was abandoning the legal defense of the DOMA law.  Federal law allows the House of Representatives, or the Senate, to intervene to defend laws in such circumstances.  The House had earlier announced that it would defend DOMA, and today selected Paul Clement to head that defense. 

Paul Clement brings a high level of experience to this effort because he served as Solicitor General under President Bush.  The Solicitor General is a position in the Department of Justice that handles all cases involving the federal government at the Supreme Court, as well as approving appeals in lower court cases in which the U.S. government is a party. The Department of Justice under President Bush vigorously defended the Defense of Marriage Act in the cases challenging it at that time, so Paul Clement will undoubtedly make a similar strong defense of the DOMA law.

Most pressing for Paul Clement will be to have the House intervene in two lawsuits in Massachusetts, in which a federal court struck down federal DOMA as unconstitutional. These cases are now on appeal to the federal appeals court in Boston, the U.S. Court of Appeals for the First Circuit.  See the ADF resource page for more information about the cases from Massachusetts challenging DOMA.

ADF has been involved in most of the marriage litigation around the nation, including the two cases now before the First Circuit.  ADF filed a friend of the court brief in those cases on behalf of the chairman of the House Judiciary Committee.  ADF has also described various arguments President Obama could reasonably use to defend DOMA.

The House of Representatives made an excellent, solid choice by picking Paul Clement to defend DOMA. His presence and advocacy in this case will refute President Obama’s dubious conclusion that there is no reasonable legal basis to defend the constitutionality of DOMA.

Proposition 8, the California Constitution’s amendment that defines marriage as one man and one woman, remains in effect after today’s order by the Ninth Circuit rejecting the latest efforts by the opponents of Prop 8 to neutralize it while the case challenging it is on appeal.

This is a bit complicated, but it is a significant development in favor of marriage. As many know, last August Judge Vaughn Walker of the federal district court in San Francisco ruled that Prop 8 was unconstitutional because it did not allow same sex couples to marry. The supporters of Prop 8 appealed the case to the U.S. Court of Appeals for the Ninth Circuit, and also requested a stay of the lower court order. The Ninth Circuit granted that motion for the stay, which allowed Prop 8 to remain in effect. Last January, the Ninth Circuit sent the case to the California Supreme Court to decide a state law question of whether those who propose an initiative have standing to defend it in court when the governor and the attorney general refuse to defend it. The answer to that question will help the Ninth Circuit to decide the merits of the case on whether Prop 8 is constitutional or not.

After the California Supreme Court agreed to decide the standing question, the opponents of Prop 8 renewed their request to lift the stay, which would then have allowed the court order striking down Prop 8 to go into effect (I hope you are still following all of these legal zigs and zags).  If the Ninth Circuit had granted that motion, it would have forced California to issue marriage licenses to same sex couples.  But the Ninth Circuit said no, so Prop 8 remains in effect.  The text of the order reads as follows:

Filed order (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), and all of the facts and circumstances surrounding Plaintiffs’ motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs’ motion at this time. [7691622] (KKW).

This is good news for marriage, because Prop 8 remains in effect.  ADF has written about the Perry case challenging Prop 8 here, here and here.

 I was privileged to sit in the Ninth Circuit’s courtroom on Monday as the three judge panel heard oral arguments on the constitutionality of Proposition 8, the amendment to the California Constitution that voters approved in 2008  that defines marriage as one man and one woman.  ADF attorneys have been aiding Charles Cooper, who argued in support of Prop 8.

      Stephen Reinhardt presided as head judge for the panel.  Judge Reinhardt clearly indicated by his questions and statements that he wants a final ruling that says (1) the proponents (supporters) of Prop 8 have Article III standing to pursue the appeal (meaning that the appeal will not be dismissed because of procedural objections raised by the other side and that (2) Prop 8 violates the U.S. Constitution because people could enter into same-sex “marriages” for almost 5 months in 2008, but then had those rights “stripped away” by the passage of Prop 8.

       The first hour of the two hour oral argument concerned the standing question, whether the Prop 8 proponents could appeal the loss from the District Court.  Issues on Article III standing can be mind-numbingly complex and boring.  Basically, it means that if a party has not suffered a concrete injury, it lacks “standing” to come to court and ask for relief.  Judges Hawkins and Smith asked many questions about whether the proponents of Prop 8, and Imperial County, have standing to appeal the case.  It is possible that the final decision will only discuss standing, but I am not expecting that.  I believe Judge Reinhardt will find a way to convince at least one of the other judges to go with him on the standing issue so they can address the merits of Prop 8′s constitutionality.

      Although Judge Reinhardt  indicated that he believes Prop 8 is unconstitutional, he expressed open concern to Ted Olson that his legal arguments favoring a constitutional right to marry a same-sex partner were too wide-sweeping and needed to be reined in. I counted at least three times that Judge Reinhardt cautioned Ted Olson to embrace a more-modest legal argument that would only invalidate California’s marriage amendment, and not necessarily the ones in 29 other state constitutions.  I guess Judge Reinhardt is concerned that a wide-sweeping legal theory that some of the judges might be reluctant to adopt Ted Olson’s legal theories that would potentially invalidate all 30 state constitutional amendments defining marriage as one man and one woman.  Judge Reinhardt seems to desire to win by a base hit, and not go for the grand slam home run.  

     Judge Reinhardt’s more targeted argument states that because same-sex marriage was legal for a few months in California, then it is unconstitutional for the voters to “strip” that right via a voter initiative.  But this restrained theory is dubious, too.  First, it is perfectly constitutional for a state to define marriage as one man and one woman.  And a state does not lose that power if it redefines marriage for a short time, realize the error of doing so, and changes back to the regular definition of marriage.  The Constitution does not prohibit states from experimenting – they can expand rights for individuals, but then draw them back if the states find their experiment to have unexpected problems or consequences.  As Charles Cooper argued in his opening brief to the Ninth Circuit:

Such a regime not only would be “destructive of a State’s democratic processes and of its ability to experiment,” but it would affirmatively “discourage[] the States from providing greater protection” to their citizens than the Fourteenth Amendment requires.  Crawford v. Board of Education, 458 U.S. 527, 535, 539 (1982).  “In short, having gone beyond the requriments of the Federal Constitution, [California] was free to return … to the standard prevailing generally throughout the United States.”  Id. at 542.

       Appellants’ Reply Brief at 76.   In other words, if the California Supreme Court ruled that the state constitution grants 16 year olds the right to vote, or that the state constitution granted a right to polygamy, there would be no problem under the federal constitution with the voters correcting the state supreme court by amending the state constitution and reinstating the 18-year-old voting age or the definition of marriage as one man and one woman.  This is especially true when the same-sex couples who obtained marriage licenses during that almost 5 month window in 2008 still retain legally valid marriage licenses. 

      It is unclear whether the Ninth Circuit panel will decide the case on standing, or get to the merits of whether Prop 8 is constitutional.  Nor is it clear how long it will take the panel to issue an opinion.  What can be safely predicted is that the case is probably headed to the U.S. Supreme Court.

A three judge panel of the U.S. Court of Appeals for the Ninth Circuit will hear oral arguments today in Perry v. Schwarzenegger, the challenge to Proposition 8, California’s state constitutional provision defining marriage as one man and one woman.

The attorneys and judges will discuss many legal concepts, but one big question needs to be answered before we can have a helpful discussion on marriage:  Why do we have marriage in the first place?  Why do human societies, separated by continents, centuries and culture, overwhelming establish and regulate a public institution called marriage, and define it uniformly as one man and one woman?  What is it that their collective experience sees that compels them to have the institution of marriage?  Maybe it is because societies want to encourage loving relationships.

Why do societies regulate marriages but not friendships? Friendships are loving relationships like marriages, but societies do not regulate friendships.  Although people can find friendships deeply satisfying and emotionally supportive, the government does not care how many friends you have.  Therefore, there is something different going on with marriage that compels societies to regulate it.    It is not just about loving relationships.

Do societies have marriage so that two people can get society’s or the government’s official ”stamp of approval” confirming that they really love each other? That cannot be correct because when the government gives a marriage license, the officials do not inquiry about the depth or nature of the affections between the couple getting married.  The official merely inquires whether the man and woman are old enough to marry, whether they are not already married, whether they are near relatives and whether they have the mental capacity to consent to marriage.    It is NOT a legal requirement that two people really love each other in order to get married.  Of course, we all want to see men and women join together in deeply satisfying marriages, but society is not concerned about those emotional aspects of marriage.  In fact, we see societies where men and women who are total strangers are joined together in a marriage arranged by their parents, so they would not have no time to develop deep affections for one another by the time of their wedding.  Therefore, something else is the purpose for marriage.

Possibly, societies created marriage as a social institution to hand out government benefits to people? That cannot be the purpose for marriage, because societies had established marriage long before the rise of the modern welfare state and its benefits programs.  Even today, in poor nations or tribes with no welfare-type benefits, they have the institution of marriage.   Maggie Gallagher has written that “[m]arriage is not a benefits package….Laws about marriage do not function primarily as an administrative distributor of benefits that help provide incentives to get and stay married, or even help people lead the kind of life they choose.”  Therefore, marriage must serve some other purpose.  What is it?

Is the purpose of marriage to encourage people to live together because it is more economical for people to share expenses and pool their resources than to live by themselves? That cannot be correct, because a society could encourage people to group together and pool their resources without creating the institution of marriage and defining it universally as one man and one woman.   A group of friends, two single moms with kids, aging widows, Army buddies would all receive the same economic advantage by living in the same household. If that were the true purpose of marriage, there would be no reason to limit it to one man and one woman.  Because societies generally do limit marriage to one man and one woman, there must be a different purpose for it.

So, what is the purpose of marriage? First, a few basic principles to lead us to that answer.

1. When men and women live in the same society, they will inevitably produce children.

2. A society has a strong interest in ensuring that  its children are raised in the most optimal way to ensure the continuation of the society into the future.

3. Children are best raised by their own father and mother, numerous studies have shown, so societies should and do develop social mechanisms to bind children to their own parents, mainly through the institution of marriage.  This does not mean that children raised by an unmarried mother or by a divorced parents cannot be raised to be well-adjusted, productive members of society.  But the best way to get that is to encourage men and women to raise their children within a marriage which is a lifelong, exclusive relationship.

4. A societal norm of “anything-goes/personal-choice-is-supreme” in marriage and family produces chaos and oppression — societies have learned from their collective experience that if a society allows every person to do whatever he or she wants in terms of family and sexual behavior, the society ends up over time with irresponsible men, exploited women (prostitution, harems, polygamy, pornography etc.), and neglected and undisciplined children.  A society cannot succeed over time with such social fragmenting of marriage and child-rearing.

Barack Obama made this point about the devastating consequences in the lives of children when fathers neglect raising them, in a speech he gave on June 15, 2008, the day before California started granting same sex marriage licenses for a five-month period:

We are called to recognize and honor how critical every father is to th[e] foundation of the family. They are mentors and role models… But if we are honest with ourselves, we’ll admit that what many fathers also are is missing – missing from too many lives and too many homes…. We know the statistics – that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and twenty times more likely to end up in prison… We need [fathers] to realize that responsibility does not end at conception.  We need them to realize that what makes you a man is not the ability to have a child – it’s the courage to raise one.

Therefore, the collective experience from a consensus of world cultures is that the purpose of marriage is to raise the children that will inevitably be born in the best social environment possible, a union of the child’s own father and mother which is lifelong, monogamous and exclusive.  This sustains a society’s continued survival into the future. Or, to put it another way, the best way to operate societies in the present and sustain them into the future is to funnel the sexual behavior of their men and women and the inevitable production of children into marriages of their own parents, one man and one woman.  Marriages defined this way provide the most secure and effective social environment, one where the entire spectrum of humanity, man and woman, live together in harmony, to nurture the next generation in the norms and principles of the society.  Those children grow into adulthood and fulfill the same process.   This is the way societies sustain themselves into the future.

That means the purpose of marriage is NOT self-fulfillment for individuals or governmental recognition of their “commitment.”

These important foundational questions about the purpose of marriage must be answered before addressing either the constitutionality of marriage, or whether it should be redefined.  If a court wrongly thinks that the purpose of marriage is to supply self-fulfillment and happiness for individuals, they will answer the constitutional questions inaccurately.  It will be important to watch for how the judges and attorneys in the Perry oral arguments address this important question of the purpose of marriage.