Prayer Ruling Used in Marriage Equality Case


Monte Neil Stewart, the attorney defending Nevada’s ban on same-sex marriage, is making a truly breathtaking argument based on the Supreme Court’s ruling in Greece v Galloway. In a letter to the 9th Circuit Court of Appeals, he says that that ruling on prayer applies to same-sex marriage as well for this astonishing reason:

In upholding the town’s practice of beginning town council meetings with prayer, the Court made several statements indicating that the First Amendment’s Establishment Clause, made applicable to the States through the Fourteenth Amendment, should not be interpreted in a way that renders invalid a practice — like prayer in public meetings — that was well established at the time the First and Fourteenth Amendments were adopted…

So too here: Any “test the Court adopts” for determining Fourteenth Amendment limitations on a State’s authority to define marriage ought likewise respect “a practice” — namely, the man-woman definition of marriage — that was
universally “accepted by the Framers” of the Fourteenth Amendment.

This is really quite an audacious argument, for several reasons. First, because he is quoting Justice Kennedy, who also authored the Windsor decision that was used to strike down the law in question in this case. Is it really reasonable to believe that Kennedy himself would apply the Greece ruling in the manner Stewart suggests? Not a chance in hell.

More importantly, the implications of this are extraordinarily bad. By Stewart’s reasoning, Loving v Virginia would have been wrongly decided too because the framers of the 14th Amendment were very clear that they did not intend it to apply to laws banning interracial marriage. Brown v Board of Education would be gone too, since segregation was absolutely a practice that was universally accepted by the framers of the 14th Amendment. His argument would render the 14th Amendment’s equal protection clause virtually meaningless.

Comments

  1. Randomfactor says

    “His argument would render the 14th Amendment’s equal protection clause virtually meaningless.”

    So we can expect Scalia to embrace it. Our only hope is that he gets this one backwards, too…

  2. says

    His argument would render the 14th Amendment’s equal protection clause virtually meaningless.

    And I’m sure he regards that as a feature, not a bug.

  3. John Pieret says

    A more serious precedent for the anti-marriage-equality crowd is Schuette v. Coalition to Defend Affirmative Action, which upheld a Michigan state constitutional amendment, approved by the state’s voters, that banned any use of race as a factor in selecting entering classes to state universities and colleges.

    [T]he Kennedy opinion, which controlled the outcome, is filled with broad demonstrations of trust in the good sense of the voting public.

    Calling forth “the underlying premises of a responsible, functioning democracy,” Kennedy wrote: “One of those premises is that a democracy has the capacity — and the duty — to rise above [its] flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

    http://www.scotusblog.com/2014/05/schuette-an-impact-on-same-sex-marriage/

    The difference is that there is no constitutional right to have past discrimination remedied by present public policy. That is a matter of … well … public policy, that voters can validly determine. But if the public voted to deny access to state universities and colleges based on the applicant’s race, that would clearly violate the Constitution and would be struck down in an instant. The state laws and constitutional amendments that seek to deny LGBT people the right to marry the people they love is analogous to the latter example rather than the former.

  4. Scr... Archivist says

    Stewart’s argument is even worse than that. Marriage equality does not “render invalid a practice” like opposite-sex marriage. In fact, it has no effect on that tradition at all.

  5. eric says

    “Framers of the 14th amendment” makes it sound like some small group of political scholars with a unified idea about what it meant and how it was to be applied. It wasn’t. IIRC, the fourteenth was the product of standard legislative sausage-making – multiple bills got proposed in Congress, the second one stealing bits from the previously rejected one. It got amended several times by different representatives for different reasons and with different agendas before passing. Then the Senate passed their own verision..with amendments getting added and rejected. Then the two versions got compared and more changes were made, until Congress finally agreed on the version we have now. The “framer of the fourteenth amendment” was the Honorable Mr. Congressional Groupthink.

  6. says

    Scr… Archivist “Stewart’s argument is even worse than that. Marriage equality does not “render invalid a practice” like opposite-sex marriage. In fact, it has no effect on that tradition at all.”
    IT DOES SO!! WHEN SOCALLED “GAY” SOCALLED “MARRIAGE” WAS FORCED DOWN OUR THROATS HERE MY WIFE SUDDENLY AND WITHOUT CAUSE DIVORCED ME AND MARRIED A GAYHOMOSEXUAL LESBIAN!!!

  7. marcus says

    “His argument would render the 14th Amendment’s equal protection clause virtually meaningless.”
    Exactly. Because nothing says “freedom of religion” like being able to oppress all those “others”.

  8. marcus says

    MO@#6 IT DOES SO!! WHEN SOCALLED “GAY” SOCALLED “MARRIAGE” WAS FORCED DOWN OUR THROATS HERE MY WIFE SUDDENLY AND WITHOUT CAUSE DIVORCED ME AND MARRIED A GAYHOMOSEXUAL LESBIAN!!!
    To be fair, given the chance, who wouldn’t?

  9. David C Brayton says

    The 14th Amendment was designed to fix things. Congress realized there were problems regarding equality and intended the 14th Amendment to fix things, not perpetuate the status quo.

    So, Stewart’s argument doesn’t hold any water. Assuming he were correct, Dred Scott would have been decided correctly and Jim Crow would be A-OK. This is not a tenable position.

    Although eric @5 makes a good point about the usefulness of legislative history, it is hard to escape the conclusion that just about everyone in the majority thought things needed to change.

    In my opinion, Marsh v. Chambers (the case approving Congressional prayer) was decided incorrectly and should be overturned. But those arguments are for another post.

  10. Mobius says

    The whole argument that something should remain legal because it is a tradition is SO bad. The cases you stated, as well as many others, show that being traditional does not make it right, or constitutional.

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