The Supreme Court decision Monday to effectively legalize same-sex marriage in at least 11 more states by not hearing appeals from traditional marriage advocates is not an act of judicial restraint but a dereliction of duty from a court that started the avalanche on this issue last year, warns Liberty Counsel Chairman Mathew Staver.
On Monday, the court announced it would not hear appeals from five states that approved state constitutional amendments defining marriage as the union of one man and one woman. Same-sex couples challenged those laws in federal court and won at the appellate levels.
Staver said this avalanche of litigation started last June, in the wake of the U.S. Supreme Court striking down parts of the Defense of Marriage Act so that same-sex couples married in states where it is legal could receive federal benefits due spouses. Federal judges then used that ruling to declare the limiting of marriage to one man and one woman to be unconstitutional.
Five different states sought to keep their own laws in place by appealing to the Supreme Court. Staver said the court did plenty on Monday by doing nothing.
“In this particular case, the decision not to act is a decision to act,” he said. “Here we had five cases pending before the Supreme Court on the issue of marriage. They knew by not acting, that would mean that these five states and the 11 states within those jurisdictions all would be effected. This would then spread same-sex marriage out throughout the country. So they knew exactly what they were doing.”
The court never gives a reason for refusing to hear an appeal, but Staver believes the court rejected them because the three conservatives on the court (Justices Antonin Scalia, Clarence Thomas and Samuel Alito) knew they couldn’t win and didn’t want to see a sweeping decision come down from the court next year.
“I believe they were reading (Justice Anthony) Kennedy as going the wrong way,” he said. “Consequently, rather than having the Supreme Court take a case which they knew was going South with Kennedy as the fifth vote, they decided not to take the case.”
For Staver, this decision says far less about marriage than it does about the integrity of the judicial system.
“I think what’s on trial is the Supreme Court of the United States and the entire judiciary,” Staver said. “When the people begin to lose confidence in this judiciary, including and beginning with the Supreme Court, then those entities lose their power.”
He added, “When they lose the confidence of the people, they lose their legitimacy. I think that’s where we are teetering right now around the country on this issue of marriage.”
Listen to the WND/Radio America interview with Mathew Staver:
Public support for same-sex marriage has increased dramatically in the past decade, with even many libertarian-leaning Republicans backing the movement. Staver rejects their major arguments in the wake of the court’s decision not to hear the appeals, starting with the notion that this was an act of great judicial restraint.
“They started it, and they should ultimately stop this destruction of marriage. What we’re talking about is the basic foundation of our society. Same-sex marriage as a policy matter says that we’re going to create this relationship and encourage people to aspire to it. We’re going to protect it,” Staver said.
“And by the way, boys, you don’t need fathers. Girls, moms are absolutely irrelevant to you because it’s a fatherless or motherless relationship.”
Another common libertarian argument is that traditional marriage advocates should not feel threatened by same-sex marriage because it poses no harm to heterosexual marriage. Staver said that’s simply false, and he used the history of the Netherlands as evidence.
“When they began same-sex unions, marriage began to disintegrate,” he said. “This will actually effect marriage. [Fewer] people will get married because it’s not going to be that unique relationship. When [fewer] people get married and you have more children out of wedlock, like you have in the Netherlands and you’re starting to see here, when you destabilize the institution of marriage you make the economy poorer and you make the society unstable.
“That’s exactly what we’re having. That’s what we’re going to see here in America and around the world. When you tinker with the very basic foundation of family and you can assume that gender doesn’t matter, you will ultimately effect the rest of society and the strength of that civil government.”
Staver also asserted that far more is at stake in terms of basic American freedoms and even life as we know it.
“It is a direct assault and collision on religious freedom,” he said. “It happened before. It continues to happen. We’re going to see it increase. This is something that I believe is the beginning of the end of Western civilization. You can’t simply redefine and pretend that marriage and ontological differences between men and women do not exist. This will have consequences.”
Staver said the fight on this core issue will never end. He said there is still more litigation to come, but the front line will soon be facing American churches.
“The question is, will the church ultimately rise for this occasion?” Staver asked. “If it doesn’t, then the church is in bad shape. I think it’s time for the church and for people of faith and moral values to stand up to this judicial tyranny. This is a system that has broken and we can’t allow it to macromanage social policy as important as marriage.”