Day 20: April 26th, 2015: 21 Days of Prayer & Fasting for Marriage & for the U.S. Supreme Court

FRC Senior Fellow for Regulatory Affairs, Dr. Chris Gacek, worked with FRC Counsel of Record Paul Linton to write an Amicus Brief in the case of Obergefell v. Hodges, et al, now before the U.S. Supreme Court – the all-important marriage case to be argued this coming Tuesday. Linton has authored numerous Amicus Briefs for FRC pertaining to marriage, going back to 2009. Dr. Gacek wrote an article summarizing the Brief for Investor’s Business Daily that is a faith builder. He believes that if the High Court rules in favor of same-sex “marriage,” it will deal the Court’s integrity and credibility a major blow. Here are excerpts from Chris’s article:

A primary argument made by those wishing to redefine marriage is that the Due Process Clause of the U.S. Constitution (14th Amendment) requires marriage to be made available to same-sex couples. In this instance, the district court in Ohio agreed – holding that the “fundamental right” to marry had been unconstitutionally denied same-sex couples…

However, the Supreme Court has stated that it is reluctant to increase the catalogue of such rights and interests given the clause’s open-ended language. That said, there is a fundamental right to marry that the Supreme Court has recognized on numerous occasions. Clearly, it covers the right of a man and woman to marry. But does it entail more than that?

When considering whether an asserted right is “fundamental,” we are to rely on the test that the court set out in Washington v. Glucksberg (1997). First… “the asserted fundamental right or liberty interest”… must be described precisely. Second, such rights must be “deeply rooted in this Nation’s history and tradition.” Furthermore, the right must be “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” The sought-after right must be “implicit in the concept of ordered liberty” so that “neither liberty nor justice would exist if (it was) sacrificed.”

In the current cases, a broad definition like “being able to marry the person of one’s choice” does not describe what the plaintiffs seek. They are permitted to marry at present, but they must marry a person of the opposite sex.

That is how the right to marry has always been understood, but…the challengers…seek the legitimation of a new right – a right to a governmentally recognized conjugal arrangement for persons of the same sex.

The next step in the Glucksberg analysis requires an inquiry into whether this new, purported right to same-sex marriage would be deeply rooted in this nation’s history and traditions, and would, therefore, be a fundamental right. Same-sex marriage is a novel concept.

No state contemplated redefining marriage until Hawaii approached the issue in the early 1990s, and it was not until May 2004 in Massachusetts that the first same-sex marriages were recognized.

Clearly, any right to enter into a same-sex marriage could not be deeply rooted in this country’s history and traditions. Consequently, there is no fundamental right to same-sex marriage.

Reaching this conclusion does not preclude other constitutional challenges, nor does it prevent legislatures from enacting statutes that allow couples of the same sex to marry… it merely prevents the Due Process Clause from being used to overturn the marriage laws of dozens of states.

If the Supreme Court were to engage in such judicial activism, it would not be well received by American voters. A recent poll of 800 registered voters conducted by Wilson Perkins Allen Opinion Research for the Family Research Council makes this clear. By 61%-32%, the voters preferred that states and their citizens define marriage – not the Supreme Court.

The American people want to be free to decide how marriage is defined in America, and they do not wish to be ruled by a judicial oligarchy. The Supreme Court should remember this as it weighs the arguments in these four same-sex marriage cases.

If it hands down another Dred Scott or Roe v. Wade, the court’s own legitimacy will be severely damaged. (Read Chris’ article HERE, the full Amicus Brief HERE).

In another amicus brief, Harold Koh, a former Legal Advisor to the State Department and Yale Law School Dean, led a team of scholars in urging the Court to join the “emerging global consensus” for same-sex “marriage.” However, Lynn D. Wardle and W. Cole Durham, Jr., wrote yet another amicus brief on behalf of fifty-four legal scholars to correct the record, documenting that no such consensus exists. Indeed, “fewer than 9 percent of the countries belonging to the United Nations have redefined marriage to include same-sex relationships-and only one of those did so via its judiciary. A judicial redefinition of marriage would make the United States an extreme outlier on the global stage” (see Judicially Mandating Same-Sex Marriage Would Put the US at Odds with the Western World).

  • Pray that God will guide the Court to read, comprehend, and take to heart the sound warnings in these briefs, which make clear that no fundamental right to same-sex “marriage” exists in our Constitution! May our Justices keep their oath to uphold that Constitution. (2 Chr 32:22; Ps 32:8; Is 10:1; Mt 5:18)
  • May each of the Justices be gripped by the fact that only one of the very few world nations that presently allow same-sex “marriage” did so by judicial fiat. May they be convicted that judicial fiat is not the American way. (Exodus 23:1-3; Lev 26:45; 2 Kgs 17:11; 2 Chr 20:6)
  • May our Justices conclude and rule that only a sacred union between a man and a woman can be called a marriage. May they rule that no state is required by the Constitution to recognize same-sex “marriages” performed elsewhere that do not meet the requirements for marriage in their own state. (2 Chr 7:14; Pr 22:28; Jer 18:1-112 Th 2:15)

Thank you for praying!

P.S. Read or download this series as it is posted daily at the Call2Fall Blog. Listen in to a powerful 90 minute nation-wide prayer briefing recorded Saturday, in short 5-10 minute segments.

Please visit these sites and participate in the events!

Tell your pastor about Stand for Marriage Sunday!

Urge him to examine FRC’s special free resources!

Pray4Marriage.org (Church Bulletin Inserts & more)

Join Dr. James Dobson and Prayer Leaders from

IFA, FRC, NPC and others on Tuesday, April 28th,

10 AM till Noon ET, to pray during the Supreme

Court Hearing: Dial 712-432-0075, code 1412452#

National Day of Prayer, May 7, 2015

Call2Fall, Sunday, June 28, 2015

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