The Fight for Marriage, Part 1: How Did We Get Here?

The Spanish Wedding, Mariano Fortuny, 1838-1874

Blogger Matt Walsh recently created a bit of a firestorm for criticizing a federal judge for attempting to force a baker to make a cake for a same-sex couple’s ceremony (Al Mohler has also weighed in). Walsh argues that the logical conclusion to the argument made by the federal court is that the government will force churches to perform so-called “same sex weddings” or else.  As a Constitutional attorney who works to raise money for a Christian legal ministry, let me quote John McClane from Die Hard and say, “Welcome to the party, Pal!”

 Those of us who are veterans of the culture wars have been warning the western world since the passing of DOMA in 1996 that the inevitable result of redefining (or undefining) marriage will be the loss of religious liberty. Yet, we were written off as kooks and, to an extent, still are despite the clear writing on the wall.

The overwhelming majority of those under thirty now support the idea of nationalized same-sex marriage. They post Facebook memes ridiculing its opponents by taking Bible passages out-of-context and argue with bumper sticker slogans like, “What does it hurt your marriage!”  Although it is the height of shallow, unreflective thinking and arrogance to simply label the generations before them as “unenlightened bigots” by refusing to contemplate what redefining marriage means for interpreting the Constitution, let’s grant them some slack.  After all, nearly every generation suffers from the inability to learn from the past.  If they were so able, we wouldn’t still be dealing with socialism, Keynesianism or liberal interpretations of the Constitution as they have all failed miserably.

But how did we get from the American Psychological Association labeling homosexual activity as a mental disorder to the culture labeling those who simply support traditional marriage as hate filled Nazis?  Especially considering the fact that Christians are the ones overwhelmingly assisting AIDS victims in Africa, etc.

I became interested in how the culture shifted so quickly and became digging in to the history a few months ago at the same time I was asked to lecture on the topic to government students at Ohio Christian University. So, get comfy dear readers as this is my best attempt at the history of how activists managed to nearly transform the culture.  Here we go…:

The Modern Homosexual Rights Movement really began in 1969 with the Stonewall Riots. The Stonewall Inn was a popular New York gay bar run by the local mafia.  The mob liked to secretly photograph prominent lawyers and businessmen in compromising positions and then blackmail them.  When the NYPD busted the place for it, a number of homosexual patrons fought with the police and a riot ensued.  The ruckus attracted national attention and became a rallying cry for homosexual activists who claimed to be persecuted.

In response to the press coverage, college student and activist Jack Baker brought suit against the state of Minnesota in 1970 for denying him and his same-sex partner a marriage license. In 1971 the Minnesota Supreme Court ruled unanimously in Baker v. Nelson (291 Minn. 310, 191 N.W.2d 185 (1971) that the state had a compelling interest in limiting marriage to one man, one woman. The U.S. Supreme Court refused to hear an appeal and the issue appeared settled until 1989.

Coincidently, in 1989, a number of events took place that sparked the homosexual rights movement:

*Marshal Kirk and Hunter Madsen published After the Ball: How America Will Conquer Its Fear & Hatred of Gays in 90’s

*Andrew Sullivan wrote “Here Comes the Groom” in The New Republic

*The California Bar Association urged recognition of same-sex marriage.

*NYC Courts ruled same-sex partners qualified for certain benefits.

*Denmark recognized same-sex relationships.

*The film Longtime Companion drew rave reviews from film critics.

Kirk and Madsen’s book was truly a bombshell and became the playbook for the homosexual rights movement.  It proposed the following:

(1) Homosexuals should stop participating in flamboyant displays and communicate in culturally acceptable ways.

(2) Ignore conservative Christians and focus on the other 65%

(3) Be relentless until conversations about homosexual rights are no longer shocking but normal.

(4) Stay focused on “rights” and not other liberal causes.

(5) Portray homosexuals as victims.

(6) Give activists a cause as homosexual protectors.

(7) Push Hollywood to make all homosexuals look like pillars of the community.

(8) Make “victimizers” look bad.

Groups like the Human Rights Campaign and Queer Nation stuck to the playbook and won their first legal victory in 1993 when the Supreme Court of Hawaii ruled in Baehr v. Lewin that it was possible that state statutes limiting marriage to one man, one woman violated the state and federal constitution.  The case, which had been dismissed by lower courts, was sent back to be fully litigated.

As Baehr v. Lewin worked its way through the Hawaiian courts, Congress responded with The Defense of Marriage Act (DOMA), which passed by a vote of 85-14 in the U.S. Senate and 342-67 in the U.S. House.  President Clinton signed it into law on September 21, 1996.

Here is the language of DOMA:

Section 1. Short title

This Act may be cited as the “Defense of Marriage Act.”

Section 2. Powers reserved to the states

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of marriage (ruled unconstitutional by the Supreme Court)

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

What about Prop 8 or the California Marriage Amendment that ended up before the U.S. Supreme Court?

Here’s how it went down:

In response to DOMA, California voters passed Proposition 22 in 2000, which defined marriage as one man, one woman.  Gearing up for a run for Governor in 2006, San Francisco Mayor Gavin Newsom began officiating same-sex marriage ceremonies in February 2004.

Alliance Defending Freedom attorney Jordan Lorence filed an injunction and brought the ceremonies to an end. LGBT groups brought suit and this prompted Proposition 8.

Proposition 8 was a proposed amendment to the California Constitution, which read:

Section I. Title

This measure shall be known and may be cited as the “California Marriage Protection Act.”

Section 2. Article I. Section 7.5 is added to the California Constitution, to read:

Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

To qualify for the ballot, Proposition 8 needed 694,354 valid petition signatures, equal to 8% of the total votes cast for governor in the November 2006 general election. The initiative proponents submitted 1,120,801 signatures in record time.  The proposed Constitutional Amendment passed 52-48%despite opponents outspending proponents and Attorney General Jerry Brown changed the title and language of Proposition 8.

Brown changed the title to “Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment.”

The ballot summary read that the measure “changes the California Constitution to eliminate the right of same-sex couples to marry in California.”

The California Supreme Court upheld this language.

Opponents immediately filed several suits challenging the Constitutionality of a Constitutional Amendment.  Most failed but one group chose to challenge under the federal Constitution.  The federal challenge, styled Perry v. Schwarzenegger, drew Judge Vaughn Walker, a Reagan appointee who was also an open homosexual.  He ruled there was “no rational basis for limiting the definition of marriage” to one man, one woman.

After Gov. Schwarzenegger (R) left office and was replaced by Jerry Brown (D) in January, 2011, the state of California refused to carry out its constitutional mandate. A lawyer backed by Alliance Defending Freedom (my employer) moved to intervene and defend on behalf of the state of California and their motion was granted. But Judge Walker’s ruling was still upheld by the 9th Circuit Court of Appeals and brought before the U.S. Supreme Court and arguments were heard on March 26, 2013.

In the meantime, back at the White House, President Obama instructed the Justice Department NOT to defend DOMA because he believed it to be unconstitutional (although the Constitution does not grant such authority to the President). Attorney General Holder notified Speaker Boehner in February 2011 that Congress could defend DOMA.  The House selected former U.S. Solicitor General Paul Clement to defend DOMA.  It came before the Supreme Court for hearing on March 27, 2013.

The Supreme Court handed down its rulings on June 26, 2013.  The Court held by a 5-4 vote that Proposition 8 should be sent back to the 9th Circuit for lack of standing (i.e., no one but the California Attorney General had the right to defend it).  They did not address the AG’s refusal to do so.  The Court also held by a 5-4 vote that DOMA was unconstitutional.  Disturbingly, Justice Kennedy argued there was no rational reason except bigotry to enact DOMA.

In the meantime, states have voted all but three times to define marriage as one man, one woman when it has been placed on the ballot.

But should marriage be limited? What does it harm to allow same-sex couples to marry? We will turn to the substantive arguments in Part 2 on Thursday.

Until then, grace and peace.

CONTINUE READING:  See “The Fight for Marriage, Part 2: Is There Even An Argument for Traditional Marriage?”

Featured Columnist - Matt

Matt Rawlings is an attorney, pastor, former Congressional aide, past music video director and prodigal preacher’s kid. Matt resides in Portsmouth, Ohio with his wife Emily, his son Jackson and his dog Duke (named after John Wayne not the university).  Matt blogs regularly at www.pastormattblog.com

All opinions expressed belong solely to their authors and may not be construed as the opinions of other writers or of OCR staff.

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