Pro-Polygamists NOT 'Excited' about Supreme Court Decisions
By: Mark Henkel
Date: Aug 09, 2013
Word Count: 2500 words
Cross-Reference: Hollingsworth v. Perry, United States v. Windsor, Supreme Court
AUTHOR: Mark Henkel
Mark Henkel is both the National Polygamy Advocate for the overall National Polygamy Rights Movement for Consenting Adults and the Founder of the TruthBearer.org organization, the non-Mormon, cross-denominational, Christian polygamy rights organization. He has been interviewed and reported by numerous major media in the United States, including FOX Business Network's "Stossel," ABC's "20/20," NBC's "TODAY Show," CourtTV (TruTV), 700 Club, Newsweek, Associated Press, Washington Times, and many more as noted at
He is also a professional speaker who has given numerous speeches before non-polygamous audiences, including a Keynote Speech at Yale.
FMI, see www.NationalPolygamyAdvocate.com
Pro-Polygamists NOT 'Excited' about Supreme Court Decisions
. . AN EXCLUSIVE SPECIAL REPORT
. . . . . . . . . by
. . . . . . . . . . . . . . Mark Henkel
Copyright (C) 2013 ALL RIGHTS RESERVED
On June 26, 2013, the US Supreme Court decided two same sex marriage cases, Hollingsworth v. Perry and United States v. Windsor. Contrary to uninformed manufactured-news outlets, pro-polygamists are not 'excited' about the decisions.
Ten years ago, back on June 26, 2003, the Supreme Court of the United States (SCOTUS) overturned state sodomy laws with its Lawrence v. Texas decision, setting the precedent against government intrusion on the privacy of individuals. Not only did that precedent have application to privacy issues regarding consenting adults choosing same sex marriage, but it equally can apply to the privacy of individuals choosing unrelated consenting adult polygamy. In an unexpected yet interesting irony, exactly ten years afterward, on June 26, 2013, SCOTUS provided two more decisions concerning such marriage issues too. But they were not as applicable to polygamy as some would attempt to suggest.
In Hollingsworth v. Perry, SCOTUS vacated the decision of a lower federal court, set a high bar for legal "standing" for private parties in federal court, and thereby chose not to decide the case on any of the merits. In United States v. Windsor, SCOTUS overturned §3 of the "Defense of Marriage Act" (DOMA), kept other parts of the law as valid, and determined that the federal government must recognize whatever legal form of marriage that each State chooses to legalize in each respective State. Oddly enough, both cases involved government officials who were openly unwilling to defend their side (because they supported the "opposing" party). SCOTUS responded to that odd similarity very differently between the two cases.
Within days after the decisions, some manufactured-news outlets were "reporting" that supposedly "polygamists" were "excited" about these two court decisions. That is simply not the case. Neither of these two latest SCOTUS decisions offers much about which polygamists can be excited at all.
Indeed, to say that the National Polygamy Rights Movement for Consenting Adults is not excited about these two decisions is an understatement. To both demonstrate and explain why that is so, this special report will provide the details of the Hollingsworth v. Perry case, provide the details of the United States v. Windsor case, and then describe how these two Supreme Court decisions affect polygamy. In the end, it will be clear: nationwide, these decisions are currently useless for polygamists.
HOLLINGSWORTH v. PERRY
In May, 2008, California's State Supreme Court determined that California law, banning same sex marriage, violated the equal protection guarantee of Article I, Section 7 of the California State Constitution. Thereby, that court ordered all counties in California to issue marriage licenses to same sex couples who request them. Same sex marriage was legalized in California.
Opponents responded immediately, putting a petition up for public referendum to amend California's State Constitution with Proposition 8. The proposed Amendment was worded as follows: "Only marriage between a man and a woman is valid or recognized in California." During the campaigns leading up to the public vote on Proposition 8, from June through November, 2008, California counties had issued 18,000 same sex marriage licenses. That November, however, voters approved Proposition 8 with a majoritarian collectivism of 52%. Same sex marriage was once again not legalized in California.
On May 22, 2009, same sex couples responded by filing suit against the California State officials, as the case of Perry v. Schwarzenegger. The Plaintiffs claimed that Proposition 8 was unconstitutional based on the Due Process and Equal Protection clauses of the Fourteenth Amendment of the U.S. Constitution. The named supposed-to-be Defendants in the case - those government officials whose job-duties comprise that of enforcing the State's marriage laws - actually agreed with the Plaintiffs. All but one refused to defend the constitutionality of Proposition 8 even though it was the state's law of the land at the time and even though it was their official duties to defend current law. Only the attorney general still chose to do his job as a named Defendant, notwithstanding the fact that he, too, openly conceded that he viewed Proposition 8 as unconstitutional. Consequently, the original petition organizers of Proposition 8 were authorized with legal "standing" to step in as Defendant-Intervenors to join the unsympathetic attorney general. On August 4, 2010, U.S. District Chief Judge, Vaughn R. Walker - accepting the Plaintiffs' arguments - overturned Proposition 8. In that District Court decision, Judge Walker determined that marriage is a "fundamental right" of the individual and, as he declared, "That the majority of California voters supported Proposition 8 is irrelevant, as 'fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.'" He then enjoined the public officials named as Defendants from enforcing Proposition 8. Same sex marriage was yet again legalized in California.
To no one's surprise, those public officials the same ones who had refused to defend the case anyway chose not to appeal. However, the original petitioners of Proposition 8 did so instead, as the appeals case of Hollingsworth v. Perry. The federal Ninth Circuit court asked the California State Supreme Court whether official petitioners of a ballot referendum have authority to assert the State's obligated interest in defending the constitutionality of the passed-referendum when public officials refuse to do so. After the state court affirmed that they do have such authority, the federal court thus concluded that the petitioners did have legal "standing" to defend the constitutionality of Proposition 8 in federal court. Even after all that, the Ninth Circuit federal court nevertheless still affirmed the District Court's decision and order anyway and it did so on the merits.
The Petitioners then appealed up to the Supreme Court of the United States (SCOTUS). But SCOTUS did not decide the case on the merits. Rather than address any of the arguments presented before them, SCOTUS ignored those merits and simply determined that the Petitioners did not have legal "standing" in federal court.
Concluding the Supreme Court's 5-4 decision, Chief Justice Roberts declared, "We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here."
Roberts continued, "Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction."
Effectively, the Hollingsworth v. Perry case of appeal by the Petitioners was rendered as being disallowed to have even occurred. Where the Petitioners were allowed "standing" as Defendant-Intervenors to join the unsympathetic named Defendant (i.e., the attorney general) in the preceding Perry v. Schwarzenegger case, they were not allowed to be the exclusive Plaintiffs in their subsequent Hollingsworth v. Perry appeal. While a State may allow such "standing" in State courts, SCOTUS said it did not qualify as Constitutional "Article III standing" in federal court.
As such, SCOTUS did not establish any marriage-based precedent on the merits of the case; rather, they merely refused it based on the Petitioners' lack of "standing" in federal court. With Hollingsworth v. Perry thereby vacated, that simply left the preceding Perry v. Schwarzenegger decision - as decided by District Court Chief Judge Walker to be the final legal authority in the matter in California. Same sex marriage is finally legalized in California.
UNITED STATES v. WINDSOR
In 2007, Edith Windsor entered into a legally-recognized same sex marriage from Canada with Thea Spyer. Later, as New York citizens, state law recognized their Canadian same sex marriage (SSM) as valid. When Spyer died in 2009, Windsor had to pay $363,053 in estate taxes to the Internal Revenue Service (IRS) of the federal government. She requested a refund but was denied due to §3 of the "Defense of Marriage Act" (DOMA). That section limited the federal government to only recognize marriage defined as "one man, one woman" (OMOW). Claiming that DOMA was unconstitutional based on the Equal Protection principle of the Fifth Amendment of the U.S. Constitution, Edith Windsor sued for the refund.
Although Constitutionally-obligated to defend the law, the Executive Branch intentionally chose to not perform its duty to defend DOMA. President Obama directed his Attorney General to notify the Speaker of the House of Representatives that the Department of Justice would no longer defend §3 of DOMA.
As a result, the House of Representatives i.e., the Legislative Branch of government whose job is to write laws rather than enforce them - established the Bipartisan Legal Advisory Group (BLAG) to defend it instead. The District Court allowed BLAG to have that "standing" and thereafter decided in Windsor's favor for her to receive the refund. On appeal, the Second Circuit affirmed it too.
Each time, however, the Federal Government still intentionally failed to comply with the order to issue the refund. That is, even though the President, as the Executive Branch, actually agreed with Windsor's "win," his Administration intentionally kept refusing to pay the refund as court-ordered. The premise for refusing to pay that refund even as the President's Administration agreed that Windsor deserved it was so as to artificially contrive a required "Article III controversy." As long as the contrived "controversy" still appeared to exist between Windsor and the government, the case could keep being appealed on up to the Supreme Court. Nevertheless, the Supreme Court allowed that contrivance to still be viewed as a valid "Article III controversy."
In addition to such problematic contrivance being allowed, a manifest contradiction emerged from this as well. Unlike how the Petitioners in the Hollingsworth v. Perry case were disallowed "standing" when the appropriate legal officials refused to defend/appeal their side, SCOTUS contradictorily chose to actually allow BLAG to still have "Article III standing" in this United States v. Windsor case, even though it is the Constitutionally-assigned job of the Executive Branch of government not the Legislative Branch - to defend and enforce laws. Between these two cases, SCOTUS's contradiction on the "standing" issue appears to proverbially "have its cake and eat it too."
With such conflation of contrivance and contradiction regarding both "Article III controversy and standing," the Supreme Court of the United States then finally decided the case of United States v. Windsor on its merits. Ordering the Executive Branch to pay Windsor's refund (becoming the third federal court to make that order), SCOTUS overturned §3 of DOMA in a 5-4 Decision - declaring that the Federal government must recognize any legally allowed marriage in (and only in) any specific States that have overtly legalized it.
Justice Kennedy began the opinion's ending conclusion, saying, "The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment."
Continuing, "DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."
Justice Kennedy further added, "While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved."
Before officially affirming the Second Circuit Court decision before it, the United States v. Windsor decision declares, "By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages."
Although much of the Court's decision positively focused on the Tenth Amendment limitation that marriage law is a States' issue and not the federal government's authority, it cloaked that perspective inside the Fifth Amendment basis of Equal Protection. The last sentence, however, clarifies the entire decision. Namely, if a State has not specifically legalized a specific form of marriage, then United States v. Windsor has no effect.
Upon reviewing these two decisions, and even without delving into any of the merits of the cases whatsoever, one has to ask, who could rationally think that these are good decisions for polygamists? The reality is, pro-polygamists have little reason to be excited about them at all.
Here are the positives.
Even though Hollingsworth v. Perry itself has now been rendered utterly useless (except, perhaps, as a negative precedent for achieving correct legal "standing"), the consequence of SCOTUS kicking it back to the Perry v. Schwarzenegger decision does pose some possibilities for polygamists to pursue the "fundamental right of marriage" of unrelated consenting adult polygamy. However, because that preceding Perry v. Schwarzenegger decision is limited to only within the State of California, such possibilities only exist in that one State.
United States v. Windsor is certainly the better of the two decisions. Its heavy emphasis on the Tenth Amendment preventing the federal government from involvement in marriage control certainly comes much closer to the position of the Polygamy Rights Win-Win Solution to end the marriage debate. Calling for abolishing all government marriage control for unrelated consenting adults, the National Polygamy Rights Movement for Consenting Adults has consistently been calling for the federal government to heed the Tenth Amendment regarding marriage. Toward that long-term end, this decision may be viewed as having some "good" about it.
But these two cases really are more about negatives for polygamists.
Not only is Hollingsworth v. Perry useless, but it was actually that very uselessness that made it even worse than useless. The disappointment of this decision is that it was not even decided on its merits. That effectively shut out every argument that had been used in that case from becoming an established precedent that otherwise could have been used in the fight for marital freedom by unrelated consenting adult polygamists (UCAP). Indeed, awaiting the official outcome on June 26th, 2013, the National Polygamy Rights Movement for Consenting Adults had pre-positioned itself nationwide to immediately file legal challenges if those merits had become a new SCOTUS precedent. Plaintiffs, pleadings, and even an amicus brief had been pre-organized, set, and ready to go. But without the merits of Hollingsworth v. Perry being set as a SCOTUS precedent, such nationwide intentions were instantaneously thwarted.
As for United States v. Windsor, Justice Kennedy's next-to-last sentence in the opinion rendered the entire decision also useless for polygamists. Namely, this SCOTUS decision only applies to marriages that have been legalized in a State. Not only has no State legalized marriage for unrelated consenting adult polygamy (UCAP), but they have actually criminalized it. Until the day that any State legalizes unrelated consenting adult polygamy as a "legal" form of marriage, the United States v. Windsor decision is also useless for polygamists.
Ergo, despite inaccurate "reports" by manufactured-news media, the National Polygamy Rights Movement for Consenting Adults is definitely not excited about these two decisions. Hollingsworth v. Perry was not decided on its merits and United States v. Windsor only applies to legalized marriages in the States. Unlike Lawrence v. Texas of June 26th ten years ago, these latest SCOTUS Decisions on June 26, 2013, are useless for polygamists.
June 26, 2013 SCOTUS
United States v. Windsor
June 26, 2013 SCOTUS
Hollingsworth v. Perry
August 4, 2010 California
Perry v. Schwarzenegger
August 6, 2010
Marriage Control Reversals in 2 States Heading to Supreme Court
December 1, 2009
End Marriage Control from Both Sides - The Win-Win Solution
July 1, 2003
Court Decisions Secure "Polygamy Rights"
[Reviewed for publication - Pro-Polygamy.com Review Board.]