Robert George, the reigning intellectual godfather of the Religious Right, complains in an interview with the Christian Post today that judges who recognize the right of same-sex couples to marry are not only ignoring the Constitution, they are ignoring his own brilliant arguments.
George, co-author of the Manhattan Declaration and co-founder of the National Organization for Marriage, published a law review article and book, “What is Marriage? Man and Woman: A Defense” with Sherif Gergis and the Heritage Foundation’s Ryan Anderson. George is quite proud that Justice Samuel Alito cited their arguments in his dissent to the Supreme Court decision overturning part of the Defense of Marriage Act. But he cannot accept that any judge with a commitment to the Constitution could possibly disagree with him.
George broadly renounces all judges who have ruled in favor of marriage equality as engaging in a “pure ideological power play.” He acknowledges that marriage equality rulings have come from judges nominated by both Republicans and Democrats, but portrays them all as “liberal judges who don’t like traditional morality and the traditional understanding of marriage and want to overturn it.”
“So they’re abusing their offices, they’re usurping the authority of the elected representatives of the people, and sometimes the people themselves acting through referendums and initiative, to impose their own vision, their own preferences, their own political policy preferences on the American people. It’s not right and it’s unconstitutional.”
George is incensed that judges are applying the Equal Protection Clause of the 14th Amendment to same-sex couples, because he says the authors of that mid-19th Century amendment were not thinking about marriage equality.
“It’s just an offense against constitutionalism, against the rule of law, against the idea that the people rule themselves in a republican form of government, to seize on a provision like the Equal Protection Clause and to overturn the laws of marriage.”
But most of all, George cannot seem to accept that an ideologically diverse set of judges, in dozens of opinions, could have considered and rejected his arguments.
“It seems to me that the courts, if they’re going to strike down the marriage laws in the name of the 14th amendment, do have an obligation to at least engage the argument that we presented, but so far they haven’t. And I know the reason why they haven’t. The reason why they haven’t… is that they don’t have an answer for the argument.”
That is ridiculous. But don’t take my word for it. I ran Robert George’s claims by Shannon Minter, legal director for the National Center for Lesbian Rights and a major player in marriage equality advocacy. Here’s what he said:
Judges across the country have considered the arguments put forward by Professor George and others—that marriage is essentially tied to heterosexual procreation and to the alleged “sexual complementarity” of men and women—and have overwhelmingly concluded that they are not persuasive. In fact, most of those courts have held that such arguments are so tenuous and illogical that they fail even the lowest level of constitutional scrutiny.