Did Ted Cruz Admit that a Constitutional Amendment is Needed to Preserve Same-Sex Marriage Bans?

From Josh Blackman's Blog, I learned that Senator Ted Cruz has made a strong statement against the Supreme Court's refusal to address a number of appellate opinions holding state bans on same-sex marriage unconstitutional.

Cruz's reaction condemns the Supreme Court's "extremely broad interpretation" of the Fourteenth Amendment. He goes on to say:

Nothing in the text, logic, structure, or original understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the Nation. It is for the elected representatives of the People to make the laws of marriage, acting on the basis of their own constitutional authority, and protecting it, if necessary, from usurpation by the courts. 

Marriage is a question for the States. That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.

Cruz's language is not particularly surprising in light of the rapidly approaching primary season. Speaking out against same-sex marriage, while simultaneously criticizing "judicial activism at its worst" is likely to energize conservatives.

But Cruz's statement also illustrates the magnitude of the momentum behind the push for the legalization of same-sex marriage. Cruz certainly devotes much of his statement to arguing against striking down same-sex marriage bans on constitutional grounds. But by focusing on a constitutional amendment as the avenue for preserving same-sex marriage prohibition, Cruz seems to be admitting that defending the constitutionality of same-sex marriage bans is no longer a feasible prospect.

Cruz may well pursue his amendment, and it may win him some votes down the road. But ultimately, the admission that same-sex marriage bans will almost inevitably fail judicial scrutiny is the most important takeaway from Cruz's statement.

Reid on Medieval Analysis of Same-Sex Marriage and Relationships

In his article "May a Man Marry a Man?" Medieval Canon Lawyers Analyze Same-Sex Unions, Charles Reid tracks medieval discussions of same-sex marriages and relationships. Reid's presentation provides a helpful summary of the arguments of the day, the types of authority that canon lawyers relied on, and how those lawyers used the authority to make their own positions more persuasive to their audiences.

Here is the abstract:

This Article has two principal purposes. The first is to examine the logic and limits of a medieval debate over same-sex unions. The medieval lawyers who engaged in this debate were no friends of same-sex unions. The debate, rather, seemed to take the form of an academic exercise by which the lawyers involved defined more rigorously the boundaries of what counted as marriage and also imported into the jurisprudence of marriage a deeply-hostile homophobia. I do not assert that same-sex marriage was an actual social reality in the Middle Ages. The existence of this debate, however, is quite remarkable in its own right. The Article’s second major purpose, then, is to reconsider the origins of homophobia. By connecting the canon law of marriage with homophobic rhetoric, the medieval lawyers reinterpreted marriage as an institution that not only served certain ends in its own right but existed to defeat the perceived threat of same-sex relations. This linkage, first articulated in the thirteenth century, unfortunately remains a feature of the contemporary debate over same-sex unions.

The article discusses three primary figures who took part in the medieval debate: Hostiensis, Antoninus of Florence, and Johannes Brunellus. The discussion of Brunellus is a bit abbreviated since Brunellus's main significance was that he continued and combined the previous arguments that Hostiensis and Antonius had propounded.

Reid's article is particularly interesting because of it's treatment of the authority that these various figures used. While Reid's summary of the authority is sometimes a bit difficult to separate from the views of the person relying on the authority, a careful reading of Reid's presentation reveals a detailed picture of the thinking of the time. Reid also does a good job of drawing parallels between modern opposition to same-sex marriage and the arguments made in the medieval era. While those parallels are depressing to see, highlighting the extreme nature of past arguments is an interesting way to undermine the current versions of the arguments.

Reid notes throughout the article that same-sex marriage was not "an actual social reality in the Middle Ages." It should be noted (contrary to what Reid has implied elsewhere) that Reid does not present much of a "debate" over the permissibility of same-sex marriage or relationships -- canon lawyers in the middle ages held the unified, unsurprising view that same-sex marriage and relationships were sinful and warranted severe punishment.

In summary, Reid's article is an illuminating piece that concisely summarizes a wide breadth of medieval discussion of same-sex marriage and relationships. While readers might find the constant re-iterations of the evils of homosexuality exhausting and unpleasant, these arguments are a useful background to the history of religious objections to same-sex relationships.

Same-Sex Marriage, Child Custody, and the Miller Perspective

This week in my Conflict of Laws course we arrived at the subject of interstate disputes over judgments in child custody cases.  This led us to the case(s) of Miller v. Jenkins (or, as our book listed it, Janet Miller-Jenkins v. Lisa Miller-Jenkins).  A good summary of the case from the New York Times is available here, but here is my attempt to lay out the facts in as brief a manner as I can.

The Miller v. Jenkins series of cases arose from a string of complicated facts.  Lisa Miller and Janet Jenkins entered into a civil union in Vermont in 2000.  Lisa gave birth through artificial insemination during this union, but eventually filed a petition for dissolution of the union in 2003.  The Vermont court released a temporary order granting Lisa custody of the child, Isabella, and giving Janet visitation rights.

This is where things got chaotic.

Lisa went to Virginia and sought a court order that she be declared the sole parent of Isabella.  Before the Virginia court released its order, the Vermont court issued a ruling reaffirming its jurisdiction.  Nevertheless, the Virginia court declared that Lisa was Isabella's sole parent and that Janet had no rights of visitation.  The Vermont court then held Lisa in contempt for failing to allow Janet to visit Isabella in violation of the court's custody order.

Litigation ensued, and the courts ultimately decided that the Virginia trial court's decision had violated the Parental Kidnapping Prevention Act (28 U.S.C. 1738A).  Despite this outcome, Lisa continued to refuse Janet's visitation requests and was again held in contempt for violating the Vermont trial court's order.  Each time she was held in contempt, Lisa would appeal the ruling.  Eventually, the Vermont court ordered that Janet be given sole custody of Isabella.

Lisa took Isabella and, with the aid of various religious organizations, fled to Ontario.  From there they flew to El Salvador and ultimately to Nicaragua.  Timothy Miller (no relation to Lisa) was a missionary who flew with Lisa and Isabella to Nicaragua and was later arrested for aiding and abetting kidnapping.  Kenneth Miller, a pastor (also no relation to Lisa), was also involved in the scheme.  He helped purchase clothing to disguise Lisa and Isabella as Mennonites, secured their travel plans, and was ultimately arrested and convicted for aiding and abetting the kidnapping, and sentenced to 27 months in prison.

Lisa and Isabella have not yet been located.

The casebook that presented this case told the story of the case's aftermath in the notes, and noted that it seemed strange that conservative religious organizations helped Lisa as much as they did.  Lisa, after all, had been in a same sex union, which Kenneth and Timothy Miller would have considered an afront to their beliefs.

News coverage of the story provides some insight into the full state of affairs.  Additionally, the pastors and organizations involved in Lisa's flight have blogged extensively on their points of view, and this provides a dimension of the story that seemed lacking in the cases, casebook, and media coverage.  Because this angle of the story investigates Lisa Miller's circumstances (and involves an oddly large number of people named "Miller"), I call it the "Miller Perspective."