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Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Because no one
is above the law!


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JW Files Supreme Court Amicus Brief In Support of Traditional Marriage, Argues against Federal Commandeering of State Marriage Laws

Group Ties Protection of Traditional Marriage to First Amendment

(Washington, DC) – Judicial Watch announced today that on April 3, 2015, it filed an amicius curiae brief in the Supreme Court of the United States to support the state governments of Ohio, Kentucky, Tennessee and Michigan following a lawsuit challenging the states’ decision not to recognize a marriage lawfully licensed and performed out-of-state between two people of the same sex (James Obergefell, et al. v. Richard Hodges, et al.(No. 14-556, -562, -571, -574)).

Judicial Watch argues “the role of defining marriage and implementing laws in regard to it has always been primarily the province of the States,” and that the courts have continually reaffirmed that tradition. Reversing that trend would only create legal and political confusion:

Interference with the States’ sovereign sphere and ultimately, with the right of their citizens to engage in the democratic process, is contrary to our system of government and will result in dangerous constitutional conflicts.

Judicial Watch argued that denying recognition of out-of state marriages that conflict with state law is not a constitutional violation. Specifically, the courts have traditionally recognized marriage as an issue residing within the states’ sovereign sphere of authority:

While it is in within the federal government’s power to intervene in the sphere of marital relations, this Court has made it very clear that those interventions are to be infrequent, deferential to State authority, and always with the balance of federalism in mind.

Judicial Watch points to the deference given to religious and other practices deemed acceptable under the First Amendment going back to the founding of the nation:

Marriage has, by definition, been the province of the States and has been traditionally defined as one man and one woman. This has been the case since the nation’s founding. There is no evidence that defining marriage in that way was viewed as discriminatory or in violation of any constitutional rights or principles. Segments of society have begun to take a different perspective but this is hardly a sufficient reason to cast aside this “unique history” consistent with “centuries of national practice.” 463 U.S. at 790. “[I]t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.” Town of Greece at 1819. “From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning the Fourteenth Amendment permits, though it does not require, States to define in that way.”DeBoer, 772 F.3d 388, 404; see also Town of Greece, 134 S. Ct. at 1818-1820.

Finally, Judicial Watch supported the states’ argument that requiring recognition of out-of-state marriages conflicting with state law will inevitably lead to constitutional conflicts and lead to harmful consequences:

[F]orcing States to recognize out-of-state same sex marriages that conflict with state law would ostensibly open the door to forcing States to recognize all out-of-state marriages that conflict with state law regardless of the conflict. This would completely remove the States from the marital relations sphere or at the very least, make state laws worthless.


If Petitioners’ reasoning is followed through to its logical and legal conclusion, what legal foundation do the Respondent States, or the United States for that matter, have for denying more than two willing participants to enter into a marriage relationship? If changing culture can be the basis for undoing centuries of legal and moral tradition as to gender, why can it not also be the basis for undoing centuries of legal and moral tradition in terms of the number of people married? Or even siblings? “If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.” DeBoer, 772 F.3d at 407.4

“The Supreme Court should resist the temptation to impose its moral values on marriage through raw judicial power, as it did with abortion through Roe v. Wade,” said Judicial Watch President Tom Fitton. “The Supreme Court is being asked to undertake a power grab unmoored from the Constitution, history, self-government, and judicial restraint.  Simply put, the Supreme Court has no power to invalidate laws protecting traditional marriage under the United States Constitution.”