Supreme Court Confers Habeas Corpus Rights on Alien Enemy Combatants

Boumediene v. Bush, 553 U.S. (2008)
by C. Paul Smith

On June l2, 2008, the Supreme Court ruled that alien enemy combatants1 detained abroad by our military forces in the course of an on-going war have a constitutional right to habeas corpus relief. Never before has the Constitution given this right to aliens abroad.

This (5-4) ruling is very important and will have far-reaching impact for years to come. Democrat Presidential candidate Barack Obama praised the ruling, while Republican Presidential candidate John McCain sharply criticized it.

On some levels, the ruling was relatively simple—the Court wanted to extend additional rights to foreign enemy combatant detainees. But on close examination, there were several complex issues involved. While few people will read the decision, this will not deter them from offering their opinions on the merits or flaws of the ruling. I encourage all citizens to read it and to get a thorough understanding of what the Court did in this case. This case is one of the most egregious examples you will find of judicial activism, lack of judicial restraint, and judicial pre-emption of foreign policy power and national defense power from the Executive and Legislative branches of the government. The implications of this decision are extensive and profound.

It is difficult to distill in a few words a concise summary of what happened in this case. The Majority opinion (authored by Justice Anthony Kennedy) took 70 pages. The dissent of Chief Justice John Roberts took 28 pages, and the dissent of Justice
Antonin Scalia took 25. When you add in Justice Souter’s 3-page concurring opinion—the total pages reach 126. But the reading of this opinion is a must for all patriots.

By the time you get to page 70 in Justice Kennedy’s majority opinion, you may be mesmerized or persuaded by his reasoning. The majority feels the pain of the enemy combatants at Guantanamo Bay, who for six years (some of them) have remained detained after they were captured in foreign lands fighting against our troops. To some, the length of this detention is intolerable. To some, the criticism that some international peoples level at the U.S. for maintaining the Guantanamo detention facility is more than they can stand. Five of the Supreme Court Justices appear to be in this group. Their impatience and disapproval of the nation’s operations in Guantanamo Bay has led them to hastily and abruptly take actions that have undermined over 200 years of constitutional precedence to attempt to appease enemies of America who will never be appeased because their hatred for America is unreasonable and intractable.

I. Background

Previous to the Boumediene ruling, alien enemy combatants had no rights to habeas corpus protection in U.S. courts if they were confined abroad in places where the U. S. was not sovereign. The case of Johnson v. Eisentrager, 339 U.S. 763, (1950) specifically held this. (See, e.g., Scalia, J., dissenting, p. 10.) The Bush administration properly relied on this precedent, as it detained captive, alien enemy combatants at Guantanamo Bay. But this year’s ruling in Boumediene abandoned stare decisis and overturned Eisentrager (1950) and effectively overturned Hamdi v. Rumsfeld, 542 U.S. 507 (2004) for no compelling reasons. A close examination of the Boumediene ruling will show that it will not give these enemy combatants any significant additional rights, and that the Boumediene holding will serve only as a rebuke of the Bush administration by the Court, when the Bush administration had in good faith relied on Supreme Court precedents. Consequently, all that this case accomplished is to diminish the power of the Executive Branch and to enlarge the power of the Judicial Branch.

II. Problems with Boumediene

Here is a list of some of the major problems in Boumediene v. Bush:

l. The Supreme Court, for the first time, confers on non-citizen, alien enemy combatants the right to seek and obtain the protections of a writ of habeas corpus in U. S. Courts.

2. This ruling by the Supreme Court effectively overturns the 1950 case of Johnson v. Eisentrager, 339 U.S. 763. Until now, there was no question but that alien enemy combatants at the Guantanamo Bay facility would not have the right to access to

U. S. courts through the filing of writs of habeas corpus. But the majority decided to interpret Eisentrager differently—they said that since the U.S. has effective control over Guantanamo Bay, that therefore the habeas writ should be made available. The Majority denies that they overturned Eisentrager, but they offered only obfuscation and linguistic contortions rather than sound reasoning in support of their conclusion. The majority’s effort to reconcile its ruling in Boumediene with its ruling in Eisentrager is a total failure—and will convince only those whose analysis processes do not insist upon facts and sound reasoning.

3. This ruling by the Supreme Court also effectively overturns major parts of the recent, 2004, case of Hamdi v. Rumsfeld, in which case the Supreme Court recommended the precise procedures and practices that Congress and the President then enacted to ensure that the detention of alien enemy combatants satisfies all constitutional requirements. In that regard, Chief Justice Roberts wrote this:

The plurality in Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004), explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.  

The plurality specifically stated that constitutionally adequate collateral process could be provided “by an appropriately authorized and properly constituted military tribunal,” given the “uncommon potential to burden the Executive at a time of ongoing military conflict.” Id., at 533, 538. This point is directly pertinent here, for surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due.  

If the CSRT 2 procedures meet the minimal due process requirements outlined in Hamdi, and if an Article III court is available to ensure that these procedures are followed in future cases, . . . there is no need to reach the Suspension Clause question. Detainees will have received all the process the constitution could possibly require, whether that process is called “habeas” or something else. The question of the writ’s reach need not be addressed. (Roberts, C. J., dissenting, pp. 4-5.)

4. In this case the Supreme Court specifically holds unconstitutional portions of the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA), which acts were specifically passed by Congress and signed by the President to comply with the requirements that the Supreme Court articulated in Hamdi.

5. The Majority in Boumediene erroneously concluded that Combatant Status Review Tribunals (CSRTs) do not have the authority to release detainees if their deten-tion is not warranted. The majority’s view on this issue is patently absurd. The authority to release one who is not properly detained is clearly implicit in the law’s language, and some detainees had been released. The majority’s reasoning here is pathetic. 3

6. The action by the majority in Boumediene is wholly inconsistent with the Court’s precedents, and amounts to a repudiation of the Court’s doctrine of stare decisis, which the Court used to honor in attempting to be consistent with its prior rulings.

7. The Court in Boumediene ruled that because the CSRT procedures provide that "newly discovered evidence" may be presented only by a new proceeding, and not during an appeal, that therefore such CSRT procedures violate the constitutional rights of the alien enemy combatants. This is a distinction without a difference—it is an inconsequential matter that does not affect any substantive right. The majority was straining to find fault with this technicality.

III. Justice Scalia’s Comment

Here is what Justice Scalia said about the Boumediene ruling:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus .... It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. [Scalia, J., at 25.]

IV. Chief Justice Roberts’ Conclusion

Chief Justice Roberts concluded this about Boumediene:

For all its eloquence about the detainees’ right to the writ, the Court makes no effort to elaborate how exactly the remedy it prescribes will differ from the procedural protections detainees enjoy under the DTA. [Roberts, CJ, at 25.]

The majority instead compares the undefined DTA process to an equally undefined habeas right—one that is to be given shape only in the future by district courts on a case-by-case basis. This whole approach is misguided .... All that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary. [Roberts, CJ , at 2-3.]

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of` federal policy regarding enemy combatants?
--Roberts, C.J., at 1-2

American Citizens Have Right to Habeas Corpus Relief When Detained Abroad

On June 12, 2008, a unanimous Supreme Court ruled in Munaf v. Geren, 554 U.S. ___ (2008) that American citizens detained outside the United States and charged with war offenses against the U.S. have the right to seek and obtain habeas corpus review of their detention.

Although the Court was sharply divided (5-4) in its ruling in Boudiemene that alien enemy combatants had a right to habeas corpus review of their detention, in Munaf the Court was unanimous in holding that American citizens have the right to habeas corpus review no matter where they may be detained.

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1 It is important to understand the definition of an “enemy combatant.” This is to be distinguished from a prisoner of war, in the uniform of its country. An enemy combatant is one who is not dressed in the military uniform of its country, but who for all appearances is a civilian, and who nevertheless fights against our troops. In other words, an enemy combatant is like a spy or a terrorist who may by subterfuge and stealth infiltrate our ranks to wreck havoc through covert means.

2 Combatant Status Review Tribunals

3 It should be pointed out that some of the detainees that were released later returned to the battle field to kill American troops.

2008 Presidential Campaign Heats Up

Constitutional Law Updates
September 2008
No. 14
2008 Presidential Campaign Heats Up
John McCain (R) vs. Barack Obama (D)
by C. Paul Smith

The 2008 presidential campaign is already a year old, and we are less than 90 days from Election Day (November 4, 2008). Regardless of the outcome, this election has already proved itself to be one of the most interesting and intense of any in recent history. A year ago, we were already anticipating the election of the first woman president; the big issues seemed to be who would Hillary select as her VP, and what would Bill be doing in the White House. But, a year later, the Democrat Party has rejected Hillary and embraced Barack Obama, who may become the first black president. And things were just as tumultuous on the Republican side, where a year ago former New York Mayor Rudy Giuliani was the front runner to obtain the nomination. John McCain had dropped out of sight in the polls, and former Massachusetts Governor Mitt Romney (who hoped to become the first Mormon president) was emerging from the crowd of candidates, making a concerted effort to apply his business skills to win the nomination. But in a matter of months, Giuliani faded into oblivion; Romney quickly took a lead in the early primaries; former Arkansas Governor Huckabee came from nowhere to play a prominent role in the primaries; but John McCain raised himself from the dead, won a couple of primaries, and then in February, he staged impressive wins in several states that catapulted him to a lead that he never relinquished.

The one “first” that is still up for grabs is whether Obama will be the first black president. This certainly looks possible. However, for my part, electing Obama would be a mistake. Race and color and religion have nothing to do with my views—my positions are issue-oriented, and here they are:

FOREIGN AFFAIRS

McCain, who proudly proclaims himself to be a foot soldier under President Reagan, will employ an approach to foreign relations that will mirror that of President Reagan—Peace through Strength. McCain’s personal courage and bravery is legendary. The Democrat Party’s nominee doesn’t bring either the personal resume nor the principled philosophy to qualify him to lead the nation in international dealings. Merely proclaiming peace and decrying war is not an adequate foreign policy, and it does not appear that Senator Obama has learned the lessons from world history, that evil will not just magically disappear through the appeasement approach. Those who understand world history recognize that during World War II millions of people were innocently killed by the Nazis and the Communists, and that America played a key role in liberating the world from those evil powers. Over 400,000 Americans gave their lives in World War II to suppress the evil powers and to liberate millions of people. Failing to appreciate this, the Democrat candidate echoes the naïve pacifist approach of Neville Chamberlain in the late 1930’s, who sought to avoid confrontation in the guise of championing peace. That flawed approach was a failure then, just as it would be today in dealing with terrorists and insurgents. He will return the nation to the touchy-feely international relations policies of Clinton, thinking that talks and negotiations can solve any and every international crisis, all the while alerting terrorists that open season is here again.

The WAR in Iraq and Afghanistan—McCain insists that we must not leave Iraq
prematurely, for this would invite a blood-bath of thousands of innocent people who had been friendly to us, but who would be left to suffer abuse, torture and death at the hands of evil terrorists. The “surge” has worked, and is enabling us to withdraw from Iraq successfully, leaving a new government that appears capable of maintaining an acceptable level of peace and stability in Iraq. This is a tremendous accomplishment! It could be a tremendous benefit to that region and to the entire world. Now that the surge has proved successful, most Democrats (including Senator Obama) have become resigned to victory in Iraq. But “during the times that tr[ied] men’s souls,” Obama showed himself to be a “sunshine soldier” whose resolve wilted under pressure.1 Obama’s position on the War has mirrored the changing popularity of the conflict. When the war was unpopular, Obama insisted that we set immediate time-tables and get out immediately. When the going got tough in Iraq, Obama led the call for retreat.

The contrast between McCain and Obama could not be more stark. McCain refused to give in to the demands of Obama and his followers, who urged precipitous retreat when we were on the verge of securing victory. McCain called for the surge, because he saw that it could obtain victory for us and stability and peace for the Iraqis. The U.S. did not go to Iraq for oil or to nation-build; we went there with 70 % national approval to eradicate an evil dictator who fomented and sponsored terrorism in Iraq and abroad; Hussein offered monetary awards to families who would sponsor suicide bombers to kill Israelis. He harbored those who sought to destroy America. And once Sadaam Hussein was taken out, we owed a moral duty to help the Iraqis form an operable government that could protect its people. In retrospect, it appears that many Americans now regret our intervention in Iraq, but a majority continue to recognize our moral responsibility to leave Iraq better than we found it. That is why the premature withdrawal option would have been a mistake.

Senator Obama has begun to flip-flop on multiple issues recently, now that he sees the need to move from the left to the center. Now he’s trying to distance himself from himself when he was the spokesman for withdrawal and defeat in Iraq. Obama does not possess the courage and resolve of McCain, who has and will steadfastly stand up against the evil terrorists, regardless of the fickle and politically correct cat calls of those who can’t stomach the cost of liberty and who lack the backbone to take a brave stand for the defense of our own nation and for the liberty and freedom of our brothers and sisters around the world. McCain has the backbone to do this, whereas Obama repeatedly shows that he does not.

The ECONOMY

McCain seeks to cut taxes and to cut government spending. Obama promises to raise taxes and to add multiple new government programs at a cost of billions. Apparently there is no limit to the size of government that Obama seeks to build. Obama has the most liberal voting record of any U. S. Senator.

It’s not that Senator Obama opposes having a strong economy—it’s just that his commitment to left-wing special interests put him on a course that would severely damage the economy. Specifically, he wants universal health care, he wants to stop global warming, and he wants to stop drilling for new oil in America. His radical loyalty to the left-wing fanatics on these issues would lead the nation into full blown socialism and would hamper and destroy the businesses that have been the foundation of our economy—the strongest economy in the world. Senator Obama does not recognize how the environmental special interest groups have already weakened our economy based upon biased science and hysterical threats that the sky is falling. For example, the cost to build roads has skyrocketed because of the environmental impact studies and ever-expanding procedures that have multiplied since the Interstate Highway System was initiated in the 1950’s. This lunacy has got to stop, and adjustments must be made in our laws—some must be repealed. But Barack Obama will not be the one to do this—he supports increased environmental laws, increased bureaucracy, increased red-tape, and of course, increased taxes to pay for the bigger bureaucracy.

The increased governmental programs Obama is calling for amount to socialism. Obama feels everyone’s pains, and he intends to expand government to solve all problems. But this undisciplined approach to government leads to excessive government, which can survive only by increasing taxes. This approach must stop! We cannot continue to act like government has to solve all our problems. Obama does not recognize this, whereas McCain does. McCain is clearly the better choice on economic issues.

SOCIAL ISSUES

Senator McCain supports traditional marriage as the preferred unit in society for the rearing of children, and he is pro life. But Senator Obama does not stand up for traditional marriage, and he champions a woman’s right to choose death for her unborn child. It is critical that the presidential candidates take a stand on these most important social issue—Will you support the continuation of the traditional family as the bedrock of our society, OR will you support the causes of those who will destroy marriage by redefining it to be available to any and every adult relationship that one can conceive (pardon the double entendre). And as for abortion—anyone who supports partial birth abortion is either ignorant of what it is or else his judgment is so fundamentally impaired that he must not be elected to lead a civilized nation. Partial-birth abortion kills the unborn baby in a painful, gruesome manner for no valid purpose. The theory that such a procedure is justified to preserve the life and health of the woman is a fiction. And it was Barack Obama who, in the Illinois State Senate, blocked legislation that would require the participating parties to attempt to save the lives of children who were born alive after abortions. This was a barbaric and disgraceful position—and demonstrates a total disregard for those humans who are least capable of defending themselves.

PERSONAL LIBERTIES

John McCain fights to preserve the right to bear arms. Obama sided with the minority in D. C. v. Heller. Obama does not believe that the right to bear arms is an individual right. McCain believes it is.

McCain fights to preserve the nation’s heritage of being a God-fearing nation.
And while the Democrat Party gives lip service to love of God, they are the party that interprets the First Amendment to require “freedom from religion,” as they regularly champion the causes of those groups whose stated goal is to eliminate God from government. Conversely, the Republican Party recognizes that government can and should accommodate God and religion because they are vital components of a good society. The First Amendment’s prohibition from the establishment of any one religion does not mean that all references to God must be excised from government.

Except for his lapse in judgment in sponsoring the Bipartisan Campaign Finance Reform Act, McCain is an advocate for freedom of speech.2 But while McCain has been shaky on this issue, Obama’s position is no better.

THE SUPREME COURT
Finally, one of the most important issues in this presidential campaign is what direction each candidate would take the Supreme Court. We must expect there to be 1 – 3 vacancies in the Supreme Court in the next four years. Right now the Court is pretty much evenly divided between four strong conservatives Justices (Scalia, Thomas, Roberts (Chief Justice) and Alito), and four strong liberal Justices (Stevens, Souter, Ginsburg and Breyer). The ninth Justice, Kennedy, is mostly conservative, but he is clearly the swing vote in many close cases. As this issue of Constitutional Law Updates will demonstrate, the next appointments will indicate whether the Court turns either to the left or to the right. John McCain and Barack Obama are clearly on opposite sides of this issue. Obama will take us to the left—towards bigger government and more socialism and fewer individual rights; and McCain will take us more to the right—limiting the size of government, cutting government expenses, and standing up against those who seek to expand the right to abort the unborn. I have hope that McCain will stand firm for traditional family values, that he will recognize the need to protect our borders, and that he will back off from his mistake in championing campaign finance reform (at the expense of jeopardizing free speech rights). But I have no hope with Obama on these issues; so once again, McCain is clearly the better choice.

CAN OBAMA PULL IT OFF?
Up to this point, Obama has been the Houdini of politics. He has magically, masterfully proclaimed that we need to change Washington, and that he’s the man to do it. His followers have hypnotically nodded and given their support—although he has escaped being pinned down to state exactly what it is that he intends to change. Now that he has won the Democrat nomination, he has had some time to figure out some specific changes that will go into his platform. Until now, most of his supporters have not really cared much about most of his positions—he won the nomination based upon his charisma and his style, not based upon the substance of his positions. Whether Obama can continue to pull-off this political magic show through November 4th, remains to be seen. As for me, I see his recent move toward the center to be merely a political expediency, which I suspect he will abandon upon election. In predicting what Obama really stands for, one must go on his previous voting record (albeit a short record). Obama will increase the size of government, raise taxes, encourage abortion and same-sex marriage. He will heap increased burdens on our economy in a mindless fanaticism to stop global warming.

I do not know whether this nation will awaken from the hypnotic sleep that has hoisted Obama to front-runner status in the presidential race. And while I differ deeply with John McCain on several issues, there are more than enough issues on which McCain is in the right, and on which Obama is wrong. Therefore my support is unequivocally for McCain.

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1 These phrases are taken from Thomas Paine’s pamphlet Common Sense, that encouraged the patriots during the Revolutionary War.

2 Perhaps Senator McCain sees the light now, since The New York Times refused a few weeks ago to print his response to an editorial by Senator Obama. McCain must recognize that the mainstream news media, especially The New York Times, has a blatant liberal bias. And as liberal as he may be at times, Senator McCain is far right of where Senator Obama is. This is why the Campaign Finance Reform law was so bad—it empowered the liberal media to have increased power and influence in the days just prior to elections, at the same time it blocked others from speaking up on current issues.

Re-defining “Family”—a way to destroy it

Those who seek to broaden the definition of “marriage” and “family” in order to secure for same-sex couples all the benefits that states confer on couples in a traditional marriages (between a man and a woman) are pursuing a course which will undermine marriage and which is geared to bring increased hardships and difficulties to children. Therefore, these efforts to redefine marriage should be defeated.

In October 2007, Maryland’s highest court (the Court of Appeals) upheld a state law stating that marriage in Maryland can only be between a man and a woman. Conaway v. Deane (2007). (See the November 2007 issue of CLU.) This ruling is in line with that of virtually every other state in the nation, except Massachusetts, in holding (1) that limiting marriage to heterosexual couples DOES NOT violate the Equal Protection Clause of the Fourteenth Amendment of the Constitution; (2) that a rational basis exists for excluding same-sex couples from marriage; and (3) that there is no “fundamental right” under the Constitution to same-sex marriage. However, while this battle is now over, the war continues. The next battle front issue in the gays’ war to obtain special rights has moved to the Maryland State Legislature, where a handful of bills have been introduced that seek to have benefits conferred on gay couples through either establishing “civil unions” or “domestic partnerships,” or through broadening the definition of marriage to include same-sex marriages. For states to pass such laws is certainly permissible, unless the Constitution should be amend-ed to provide otherwise. The key issue in this debate appears to be summed up by this line of thinking: If we can pass a law extending to gay couples some of the benefits of “marriage” without hurting the institution of marriage, then I will do it. I believe that the “If” clause in this statement is an impossibility, and that therefore the State should not broaden its definition of marriage to include same-sex unions.

There appear to be some undecided delegates on the Maryland House Judiciary Committee who are prepared to vote to preserve marriage, such that they would vote not to create “civil unions” nor “domestic partnerships” nor to broaden marriage to include same-sex couples IF they find evidence that extending marriage-like benefits to same-sex couples would have an adverse effect on families and children. But if they cannot find such a negative correlation, then they may vote to extend these additional rights to gay couples.

It is the purpose of this issue of CLU to articulate such an argument that can help this handful of legislators to see what the negative effects would be from extending these special rights to gay couples. There follows copies of two letters I submitted to the Judiciary Committee on February and March, which attempt to answer this important cause-effect inquiry. I offer them here because I believe they are helpful.

1. This issue is now before the California Supreme Court, which challenges Proposition 22 (passed by the people of California in 2000, making marriage only between a man and a woman. The case arose from the actions by the City of San Francisco, that licensed approximately 4,000 gay marriages in 2004.
2. A federal marriage amendment has been proposed that would establish a national standard. See CLU, May 2004.

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C. PAUL SMITH
Attorney at Law
One Church Street, Suite 910
Rockville, Maryland 20850
(301) 762-0033
Fax No.: (301) 762-0285
March 4, 2008

Chairman Joseph Vallario and
House Judiciary Committee, Room 101
Lowe House Office Building
Annapolis, MD 21401

Re: House Bill 1345 and related “marriage” bills

Dear Chairman Vallario and Members:

I am submitting this to supplement the letter (with summary) and the oral comments I made to your committee on February 28th. These comments are to address this issue:

If the Legislature passes measures to recognize gay partnerships as “civil unions,”
“domestic partnerships” or “marriages” will this adversely impact traditional
marriage?

For the reasons given below, the answer to this question is YES!

If the State were to recognize gay partnerships as either “civil unions,” “domestic partnerships,” or “marriages,” this would significantly undermine the State policy to promote traditional marriage as the preferred relationship for the bearing and rearing of children. The traditional policy would be undermined because the State would effectively be saying that there is no preferred relationship for the bearing and rearing of children.

The purpose of having a state policy to promote traditional marriage is to set up a legal system and laws to encourage child-bearing to occur within the bonds of marriage between a man and a woman. The purpose of such a state policy is also to discourage the birth of children outside the bonds of marriage. If the State were to bestow the same benefits of marriage on any and all couples who have guardianship of a child, this will effectively repeal the state policy to promote marriage. There is no way around this. (See attached, one-page of excerpts from the Brief of James Q. Wilson, et al.)

It may be tempting to approach this from the point of view of a particular child or children. Under this approach, if the Legislature were to say: We will bestow on whatever partners who have children the same benefits of a married couple, this would eliminate any incentive to be married before having children. At first glance, this approach would appear to give the same legal benefits to every child. But that is not what will happen. This approach would discourage marriage and would discourage advance planning for children; it would promote after-the-fact, after-birth planning for children, and would not encourage any type of parental relationship as the more desirable one for children. The predictable effect would be that there would be more and more children that would be raised in relationships that are shown to be less advantageous for children than that of a married husband and wife.
Thus, if the Legislature, out of a desire to help the few children being raised by gay parents, passes a law that recognizes gay marriages, then the Legislature will put in motion the measures that will cause many times more children to be adversely affected because they are denied the opportunity to be raised by their own mothers and fathers.

Even if the State were to somehow confer on gay partnerships all the legal benefits of a marriage, this will not guarantee that it would eliminate the ostracism of children. Even if a gay partnership were given the title “marriage,” it would still, obviously be a “gay marriage.” There will be no hiding of the fact that John has two “moms” or two “dads.” Much of society still regard gay relationships as morally wrong. This societal attitude will not be changed by legislative fiat. The Legislature cannot pass a law that will make people think that gay relationships are either right or wrong. Thus, if the Legislature were to confer the benefits of “marriage” on gay partnerships, then these results would follow: (1) the partners would get additional rights and benefits; but (2) the children of such partnerships would continue to get the adverse fallout from the partners’ relationship.

Studies show that children raised by gay partners have significantly higher risks of problems—including physical health, emotional and mental problems, and substance abuse. (The summary I previously submitted gives the reference to such studies.) Conversely, children raised by a father and a mother tend to be healthier, wealthier and happier. It’s not enough to raise a child to read well, to do mathematics well, and to perform well academically. Children also need to learn how to live as heterosexuals; they need to learn how to relate to men and to women; they need to learn how to be a good father or a good mother; they need to learn the differences and complementary qualities of the two sexes.

One of the arguments made for the recognition of gay marriage is the request of the gay couples to obtain for themselves the same rights as married couples. This argument is typically couched in terms of correcting their denial of Equal Rights. This argument was one of the principal arguments addressed by the Court of Appeals recently in Conaway v. Deane. The Court dismissed this argument as a misinterpretation of the application and meaning of Equal Rights under the Constitution. Nevertheless, the State can bestow such rights if it so chooses. But for those who urge the passage of laws to recognize gay marriage in order to secure for themselves legal benefits for their intimate relationships—I suggest that this should not be the focal point of concern. The most important issue is “What is best for the children?” That is the issue that should be controlling, not the question of what special rights to bestow on partners. The best interests of children and society were the bases for establishing state control of marriage in the first place. And that should continue to be the point of focus.

The increases in divorces, out-of-wedlock births, and single-parent households during the last 40 years certainly indicate that marriage and the family are being marginalized in our society. But it does not follow that the State should therefore abandon and scrap marriage. On the contrary, these increased problems have been caused by a departure from mother and father parenting; and the negative trend could be reversed by a return to traditional mother and father parenting. It would not be best for children to abandon the state policy to encourage traditional marriage; it would be better for the state to reaffirm its commitment to traditional marriage as best for the children and for the State.

Sweden, Norway and Denmark have had something close to same-sex marriage for over ten years, and according to one analyst, this has undermined the institution of marriage. (See, Stanley Kurtz, “The End of Marriage in Scandinavia; the conservative case for same-sex marriage collapses.” The Weekly Standard, Feb. 2, 2004, Vol. 9, Issue 20.) Kurtz reported that the out-of-wedlock birth rates have jumped from 39% to 50% in Norway and from 47% to55% in Sweden. In Denmark the rate dropped slightly, from 46% to 45%, but “about 60% of first born children in Denmark now have unmarried parents (Kurtz, p. 2). (I am sending a copy of this article to Chairman Vallario.)

Those gay couples who seek to legalize same-sex marriage have often sought to use the children to make the case that the State should recognize same-sex marriage. The sympathetic appeal of this argument cannot be denied. Especially, when the gay couples send the children over whom they have guardianship before this Committee to tell of the ostracism they feel because their “parents” aren’t married. The plight of these children is indeed heart-wrenching. But their “parents” knowingly and with planning and calculation brought the children into their gay relationships. I have great concerns for these children. But to pass laws that will encourage more children to be raised by gay parents will not help the situation; rather it will most likely cause more children to have problems.

Without fail, the gay couples take the implicit (and sometimes explicit) position that they were born that way or that they cannot change. It seems to be politically correct to embrace this point of view, but the science does not support this position. There is no scientific evidence that homosexuality is innate; there is abundant evidence that homosexuality is affected by environment, conduct and choices; and there is undeniable evidence that some homosexuals have changed. I recognize that what I said irritates and angers many gays. But I would suggest that it would be best for the Legislature to pay closer attention to the legitimate scientific studies on the issue, rather than to be manipulated by the anecdotal testimony that is given and repeated almost every time these issues come before the Legislature.

If the Legislature heeds the siren cries of those who approach this marriage debate as an Equal Rights issue, then the Legislature is likely to make the serious mistake of undermining and destroying marriage. Maryland public policy has promoted and preferred marriage for over two hundred years.

In conclusion, if the State were to recognize gay partnerships as either “civil unions,” “domestic partnerships,” or “marriages,” then the State would be repudiating the policy and preference it has embraced for over two hundred years that it is best for children to be raised by their two parents—the mother and the father. The State cannot both give gay partnerships the benefits of marriage and at the same time continue to promote traditional marriage as the best social unit for the rearing of children. For the reasons stated above, it would be best for the State to strengthen its endorsement of traditional marriage by amending the State Constitution to provide that marriage in this state is only between a man and a woman.

Respectfully submitted,

C. Paul Smith

Encl.

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Excerpts from Brief of James Q. Wilson, et al., on the value of traditional marriage for society—

The philosophical and legal bases for a state to pass laws to promote traditional marriage (between a man and a woman) as the preferred social unit for the bearing and rearing of children are stated succinctly in one of the Amici Curiae briefs that was filed in the case of Conaway v. Deane:

Marriage has a unique and indispensable social purpose: creating families in which children will be known and loved by their own mother and father. . . .

Virtually every know human society has recognized the need for a public institution to regulate the procreative consequences of sexual attraction between men and women, both because reproduction is a necessary task, and because the alternative to some form of successful social regulation is fatherless children who suffer serious harms themselves and pose substantial burdens and dangers to society.

The scientific evidence strongly suggests the prime way marriage benefits children is not by bestowing a set of legal benefits (transferable to other family forms) but by increasing the likelihood that children will be born to and raised by their own mother and father. The vast majority of children born to a married couple begin life with their own mother and father committed to jointly caring for them. Only a minority of children in other kinds of sexual unions do so. Marriage serves many individual needs, but this is its most unique and irreplaceable social function: encouraging men and women to procreate responsibly. As a matter of historical record, marriage is not rooted in animus towards gay[s] and lesbians, but is a classification that responds to real and enduring human realities: only opposite-sex unions can both create the next generation and connect those children to the mother and father who made them.

[W]hen the connection between marriage and procreation weakens, many children suffer, and so do the communities faced with higher rates of poverty, crime, juvenile delinquency, welfare dependency, child abuse, unwed teen motherhood, infant
mortality, mental illness, high school dropouts and other education failures.
[Emphasis added.]

Same-sex marriage would strip from the law of Maryland the one feature of marriage that has been virtually universal throughout human history. It [would] put[] law and government in the position of educating the next generation that: (1) Any two committed adults are just as good as a mother and father, when it comes to raising kids; and/or (2) Marriage has little or nothing to do with children; it is primarily about adult needs for intimacy. Such a dramatic shift in the legal meaning of marriage is likely to have real social consequences.

(Brief Amici Curiae of James Q. Wilson, et al., Legal and Family Scholars, in Support of Defendants-Appellants, pp. 2-3. Frank Conaway, et al., v. Gitanjali Deane, et al, in the Court of Appeals of Maryland, September Term, 2006, Case No. 44.) The studies that provide the support for these conclusions in contained in the 50-page brief, a copy of which is being furnished to Chairman Vallario.

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C. PAUL SMITH
Attorney at Law
One Church Street, Suite 910
Rockville, Maryland 20850
(301) 762-0033
FAX NO.: (301) 762-0285

February 28, 2008

House Judiciary Committee
Maryland House of Delegates
Lowe Office Building
Annapolis, MD 21401

Re: House Bill 1345
Maryland’s Marriage Protection Act

Dear Committee Members:

I am a husband, a father and a grandfather. I reside in Frederick, Maryland, where I am currently one of the city’s Aldermen. For over 35 years I have worked with youth as a parent, a baseball and basketball coach, a scoutmaster, the bishop of a church congregation, and in other capacities as well.

I am writing in support of House Bill 1345, which would establish a state referendum in November for the voters to determine whether to amend the State Constitution to provide that in Maryland marriage is only between a man and a woman. This is not an anti-gay bill. It is a pro-child and pro-marriage bill. The bestowal of benefits on husbands and wives through Maryland marriage laws does not punish those who are not married. This bill is part of an important state policy to promote the traditional family as the preferred one for the bearing and rearing of children. I urge the passage of House Bill 1345.

1. Resolving the issue by referendum. The provision in the bill to resolve this sensitive social issue by a state referendum is an excellent idea. The referendum approach to the issue is appropriate for an amendment to our Constitution on a matter of such great importance.

2. Defining marriage as only between a man and a woman will strengthen families. Although the bill only calls for a referendum on the issue, its purpose is to achieve an amendment to our Constitution that does limit marriage to a relationship only between a man and a woman. For the reasons stated below, I believe that this would be a desirable improvement in our Constitution.

First, although our state law (Section 2-201 of the Family Law Article of the Code of Maryland) currently provides that marriage is only between a man and a woman, by making this same provision a part of the Constitution would make the restriction stronger, and would be a protection to and promotion of marriage and of strong families.

Second, the amendment would be a strong public policy statement that Maryland promotes and encourages traditional marriage as the best relationship for the bearing and rearing of children in the state. This is a policy that affects the vast majority of the people in the state. It
is a policy that has been a part of Maryland law for over 200 years—a policy that discourages people from having sexual relations outside of marriage, and encourages couples to commit to love and care for one another in a legal (and often at the same time a religious) ceremony before beginning sexual relations with a partner. This is a good and wise standard. It is a policy that bestows certain legal benefits upon the married partners. All of this promotes marriage as the fundamental unit of society for the rearing of children, and to provide for the health, support, safety and well-being of people in the state. During the last 50 years, the increased incidences of drug use, alcoholism, crime, welfare needs, and various health problems can all be tied to the weakening of the family and a decrease in the number of families having both a father and a mother in the home. The proposed bill is a simple step that reinforces the important policy that our forefathers recognized when they first enacted marriage laws.

Third, scientific studies show that the traditional marriage relationship is best for the rearing of children. Most people believe that this is true, but many are not aware of the scientific studies that support this cause-effect relationship. Attached is a four-page article that I recently prepared and published in Constitutional Law Updates, October, 2007, which gives some of the primary studies that support this conclusion. I am aware that you will be (or may already have been) provided with materials that seem to contradict this. But if you wish to become fully informed about the scientific studies on this issue, then you should consider the books and studies referenced in the attachment. An honest scientific review of this issue will demonstrate that the superiority of traditional marriage for rearing children is borne out conclusively by the studies.

Fourth, a state has the right to prefer and promote one type of relationship for the bearing and raising of children in the state. As the Court of Appeals recently held in Conaway v. Deane (2007), as long as there is a rational basis for the state to promote traditional marriage, it may properly do so. The Court went on to find that such a basis does exist. There will always be some families without both a father and a mother. But the existence of such situations does not diminish the need and the importance of establishing a state policy that promotes traditional marriage as the best and preferred relationship for the rearing of children. State laws set state policies. And House Bill 1345 would help set the policy that this state wishes to encourage traditional families, with both a mother and a father, for the rearing of children.

Fifth, that part of the bill that would not recognize civil unions and domestic partnerships is an important and desirable part of this bill because the giving of these relationships the same
legal benefits as marriage would ultimately undermine the state policy to promote and prefer traditional marriage. This part of the bill does discriminate between the preferred, traditional marriage relationship and other relationships. But this differentiation is necessary in order for the state to have a policy that promotes the best interests of the children as a whole. Not only is there a rational basis for this disparate treatment, but the overwhelming evidence from scientific studies supports the state’s having a policy that encourages traditional marriage as the best relationship for raising children in the state. This preference is not a punitive act against other relationships, rather it is an essential part of having a policy that prefers one relationship over others. The proposals before the Legislature to recognize civil unions and domestic partnerships are merely back-door attempts to eliminate the preference that Maryland law has long given to traditional marriage. The proposals to recognize civil unions and domestic partnerships are back-door attempts to redefine marriage. The effect of recognizing civil unions and/or domestic partnerships would be to repudiate traditional marriage as the best and preferred relationship. State law cannot be all things to all people; either it must make traditional marriage the preferred family relationship or not. If the State were to establish a preference for traditional marriage and to recognize civil unions and domestic partnership, then the State would be taking inconsistent positions. If the State chooses to continue to prefer and promote traditional marriage over other relationships, then it may do so, and it should do so. But the State cannot do both, for the bestowal of special legal rights on other relationships undermines the state effort to establish a policy and preference for traditional marriage as the best relationship for the bearing and rearing of children.

Thank you for your consideration of my comments.

Very truly yours,

C. Paul Smith

Encl

Mitt Romney for President

Mitt Romney is the best candidate for President of the United States.

As I write this¹, Mitt Romney just won the Nevada caucuses in a landslide, taking 51% of the Republican votes. Ron Paul was a distant second with 14%. All the other Republican candidates were in the single digits. Also, today, McCain won the South Carolina Republican primary with 33% of the votes (again including independents). Huckabee placed a close second with 30%, followed by Thompson with 16% and Romney with 15%. The liberal media is crowning McCain with the front-runner jacket, and are pronouncing that he has taken the lead because the Republicans believe he is the candidate most likely to beat either Hillary Clinton or Barack Obama. I don’t buy it. I don’t think McCain is going to get the Republican nomination, and I don’t think he is the Republican Party’s best hope to beat the Democrats. And I am not ready to repudiate my principles to win the election, even if what the liberal pundits say is true. Furthermore, current polls in Florida have McCain, Romney and Giuliani running neck and neck (although the Rasmussen poll has Romney ahead 25% - 20%), and in California one poll has Romney in the lead.

I. WHERE WE STAND AFTER THE SOUTH CAROLINA PRIMARY—THE END IS
NEAR FOR HUCKABEE, THOMPSON AND GIULIANI

Now that the South Carolina Primary is over—it appears that the race for the Republican nomination will be between Romney and McCain. The reason is clear: First, Romney currently has more delegates than any other candidate, including McCain. Second, because no Republican contender has more than 25-30% support at this time, it impossible to pick a winner at this point. Third, Romney is already in Florida, where he will campaign vigorously for the next 10 days—and he is expected to stress his economic message, which proved to be a winner in Michigan and elsewhere. The fact that the nation is currently facing the threat of a recession makes the economy the biggest issue for the nation. And Romney’s experience and understanding of economic issues is superior to that of any other candidate. President Bush and Congress are at this very moment discussing a temporary stimulus package to revitalize the sagging economy². All of this should play into Romney’s hands and help him in Florida. And fourth, the other three main contenders are basically eliminated by the South Carolina results. [A Rasmussen poll on Tuesday had Romney with 25% support, trailed by McCain and Giuliani with 20%. Huckabee was a distant fourth.]

(a) Huckabee needed to win in South Carolina, but he failed to do so. Although he only lost to McCain by a slim margin (33%- 30%), still Huckabee did not win. A candidate has to win some primaries. Except for Arkansas (where he was governor), there is no other state where he can expect to find the evangelical support that he will need to win. Huckabee is a great communicator, and he talks a good talk, but his governing record—especially on taxes and immigration—belie his words. Huckabee still has a mathematical chance to win the nomination, but the probabilities are poor. While Romney and McCain both have excellent chances to win numerous additional primaries—that is not so for Huckabee. Huckabee has said so many things that will come back to haunt him, and he has flip-flopped on major positions during the campaign. This will cause Huckabee to slowly fade in the remaining primaries. Although there will certainly be some evangelicals who will not back a Mormon, I predict that most of them will because the evangelicals are mostly people of principle, who support the same principles that Romney advocates. For all the reasons I stated above, true conservatives will have a hard time supporting McCain. I predict that Romney will pick up most of the Huckabee supporters.

(b) Thompson was desperate to win in South Carolina, and he didn’t. By finishing a distant third in a state that he believed to be the home of some of his most ardent supporters—this brought an end to the Thompson campaign³. He will continue to be respected for his loyal support of conservative principles, but he is not what the party is looking for in a candidate. His support will go elsewhere. I predict that most of his support will go to Romney, for the same reason that most of the Huckabee supporters will eventually back Romney—because he stands for the same principles that Thompson stands for.

(c) Giuliani has not had a good showing anywhere yet. He is counting heavily
on doing well in Florida, where he, Romney and McCain are all polling at about 20-25%. Giuliani is literally desperate to win in Florida. If he does not win there, I believe he’ll be out of the running. Whereas Giuliani at one time had a lead in the national polls, McCain has now overtaken him. Both Giuliani and McCain draw support from the more moderate (liberal, if you will) parts of the Republican party. Both McCain and Giuliani are regarded as men with the leadership skills that would serve our nation well. But neither McCain nor Giuliani are regarded as strict conservatives. Giuliani is pro choice and supports gay marriage. Put all of this together, and what you get is: McCain is currently taking the support from those in the party that might otherwise support Giuliani. Thus, Giuliani is suffering most from McCain’s resurgence, and it will lead to Giuliani’s bowing out of the race after Super Tuesday.

The combination of all of this will be that Romney and McCain will be the only two Republican candidates left standing after Super Tuesday. The biggest question then becomes: Where will the Giuliani, Huckabee and Thompson supporters go? For the reasons stated below, I believe that most of this support will go to Romney.

II. THE PROBLEMS WITH McCAIN

The problem with McCain is very simple: He’s not a conservative⁴. He is liberal on too many important issues. True, McCain has been strong on the war on terror, and this is important. But if he should win the Republican nomination, I, like his 95-year-old mother, would have to hold my nose in voting for him over the Democratic nominee. But at this point, I’m not ready to capitulate and support a Republican candidate whose political philosophy is too much like that of the liberals. McCain’s political philosophy is more like that of Bill Clinton than that of a conservative; he listens to what the voters want, then he decides what position he will take. Either for this reason, or because he really does embrace liberal causes, too often on important issues McCain has sided with liberals, against conservatives. Here is a quick list of John McCain’s serious political errors/flaws that make him unacceptable to me:

1. Campaign Finance Reform. McCain is one of the main proponents of this flawed law—the McCain-Feingold Campaign Finance Reform Bill⁵. This law imposed serious limitations on political speech in the name of seeking to keep “special interests” from having too much influence on national, political debate. The restrictions it imposes on precious political speech is significant; and the law gives increased influence and power to the media, which continues to be heavily slanted in favor of the liberal point of view. This is an assault on free speech. McCain’s excessive zeal to curtail the speech of people who pay for advertising to advocate a political position is a serious error. His goal to keep money out of politics is naïve and unsound. McCain is the darling of the media, but his actions betray conservatism.

McCain’s excessive zeal for his ill-conceived campaign finance reform law led him to file a brief against the Wisconsin Right to Life group when that group challenged the constitutionality of the McCain-Feingold Campaign Finance Reform law. McCain didn’t like the Right to Life group’s issue ad that ran within 30 days of a general election in Wisconsin. Fortunately, the Supreme Court ruled in favor of the Right to Life in June of 2007 and struck down that part of the campaign reform law that prohibited issue ads just prior to a general election. This case is extremely important for two reasons. First it demonstrates that McCain’s priorities are wrong; he sided with his campaign reform law over the fetal right to life. I disagree with his priorities. Second, his thinking is infected with the ill-founded and erroneous notion that you can take money out of political speech, and that doing so is a virtue. This thinking is naïve, and is a rejection of the most fundamental principles of freedom of political speech, which is the bedrock of all our freedoms in America. McCain’s loses twice in this matter, and it demonstrates that he lacks the judgment to be our leader.

2. Gang of 14. McCain is one of those seven Republican Senators who undermined the effort of Republican Senate Leader Bill Frist, who was prepared to repeal that part of Senate Rule XXII (the filibuster rule) which empowered the minority in the Senate to block judicial nominations unless there existed a super majority (60%) in favor of a nominee. This Senate rule had come to be abused by the Democrats during administration of Bush (43); in essence, as practiced by the Democrats, they used this rule to control the approval of judicial nominees. This part of the rule—that is the use of filibustering to block nominees—should be eliminated. The filibuster can remain for legislation, as far as I’m concerned, but not for nominees. John McCain played a key role in preserving this abusive practice. He abandoned the Republican, conservative party when he exercised this power. This act of betrayal by McCain endeared him even more to the liberals. But it infuriates me. What kind of a leader is this? He’s not my leader. He seems more concerned about appealing to the liberals than to fighting for the principles of conservative government.

3. Immigration Reform. McCain was one of the authors—along with Ted Kennedy—of the immigration bill that they and President Bush proposed in 2007—a bill that would have in essence granted amnesty to the 12 million illegal immigrants in America. This proposal was soundly rejected by the American people. This proposal was a repudiation of the rule of law in America, and it would have rewarded those who violated our laws; it would have been an insult to those people who have faithfully followed and complied with our immigration laws. While McCain demonstrated his flawed judgment in proposing this bill, he nevertheless did show that he is a disciple of the Bill Clinton school of leadership, for when he realized that the majority of Americans opposed the McCain-Kennedy Immigration Reform Bill, he eventually got in step with the majority. Well, that’s partly good, because at least he has changed for the better. But, McCain demonstrated flawed judgment; he demonstrated the type of leadership we can expect from Democrats, but not the type of judgment and leadership that this nations needs. We can do better than settle for this in a candidate.

4. He voted against the Bush Tax Cuts. When McCain twice voted against Bush tax cuts he demonstrated that he does not subscribe to the economic theory that appropriate tax cuts stimulate the economy and actually lead to increased governmental revenues. McCain voted with a minority of Congress—he sided with the most liberal of the Democrats in opposing the tax cuts⁶. Fortunately for the nation, McCain’s viewpoint was not successful. Those tax cuts
helped the national economy to recover from the brief recession that President Bush inherited from the Clinton administration, and those tax cuts helped keep the national economy strong despite the significant strains and demands of the war against terrorism. McCain’s position on this is another reason why the nation does not need and should not want him at the helm. Once again, McCain fought against the principles of conservatism and sided with his liberal friends on the other side of the aisle.

5. The Truth about McCain’s “Truth” Campaign. One of John McCain’s chief political strategies is to promote himself as the “straight talk candidate,” the candidate of truth, and at the same time to attack Mitt Romney as a liar and as a flip-flopper. In the first New Hampshire Debate, McCain attacked Romney for falsely labeling the McCain-Kennedy Immigration Reform Bill as an “amnesty” measure. He criticized Romney for running false attack ads to attempt to smear him. Well, so much for the truth; McCain himself had called the McCain-Kennedy bill a form of amnesty. Romney had correctly characterized McCain’s position. McCain demonstrated that he is a great political counter-puncher, but to those who demand the truth—they will find McCain wanting in this quality. McCain’s attacking Romney in New Hampshire does demonstrate McCain’s intuitive ability to recognize the one candidate who will be his toughest competitor—Mitt Romney. But McCain’s attempt to paint himself as the candidate of “truth” is actually an untruth. In Florida, McCain continues to accuse Romney of changing his positions with every new, changing wind. But McCain is himself the master flip-flopper. Most notably, he flipped on tax cuts, and he flopped on immigration. While he can aspire to be the candidate of truth, he has not earned the right to wear that title.

6. Federal Marriage Amendment. This amendment would mandate that marriage in the United States can only exist between a man and a woman. Senator McCain has opposed this amendment on the grounds that it violates the constitutional limits of federalism. This is usually an acceptable conservative response to legislation that tends to infringe on the rights of the states. However, because the federal government—through the courts—has already pre-empted the states in the regulation of all major aspects of marriage, the only way to recoup what has been lost by the states is to enact a constitutional amendment. This is perfectly in harmony with the Constitution; an amendment is needed to address this matter; and addressing the attack on the family by passage of a constitutional amendment is good, proper and necessary⁷. And to those who nevertheless cling to their conservative rationale and who refuse to acknowledge the critical nature of the threat to the family, I would point out that conservatism is not the only important principle of government. And in this particular case, the normal conservative approach that is sufficient to resolve most governmental questions must yield to the over-riding critical family value that is under assault in our society. Furthermore, the Courts have already pre-empted the regulation of marriage by its long string of cases that have usurped state regulation of marriage. By this I am referring to the following cases: Griswold v. Connecticut (1965), Skinner v. Oklahoma (1942), Eisenstadt v. Baird (1968), Roe v. Wade (1973), and Lawrence v. Texas (2003). Finally, I would note that Senator McCain does indeed find some protection in his citing “federalism” as a basis for not supporting the Federal Marriage Amendment. But what I see is that he is afraid to speak out on one of the most important issues of our day—he chooses to
wait to see if a super majority of the nation ever becomes supportive of this amendment. When and if that happens, I have no doubt that he would fall in line, and then run to the front of the line. But that is not the leader I am looking for. Conversely, Governor Romney has spoken out strongly in support of this amendment and in support of other issues to protect and strengthen the traditional family as the foundation of peace, prosperity and liberty in America.

III. A DISCUSSION OF ROMNEY AND McCAIN ON OTHER ISSUES

The War on Terrorism, including Iraq and Afghanistan. All three Democratic candidates condemn every aspect of the war in Iraq; the three of them argue over who would lead the nation to retreat and withdraw the fastest. Except for Ron Paul, all the Republican contenders condemn the Democratic plan for announcing a retreat date, and for premature withdrawal without first securing victory. In January of 2007, Mitt Romney was beginning his campaign for the Republican presidential nomination. At that time, our military was suffering excessive deaths in Iraq, and President Bush was just announcing the beginning of the “surge.” At that critical moment for the nation, I listened carefully to what Romney would say about what I regard as the most important issue of our day. Romney supported the surge 100%. He recognized that a premature withdrawal from Iraq would endanger the lives of millions of Iraqis who had relied on America to help them begin their new government. He recognized that a premature withdrawal from Iraq would be an invitation for the terrorists to take over that torn nation. He recognized that America could defeat the insurgents. He recognized that success in Iraq could bring a lasting stabilizing influence to that important region of the world. Six months later, when the evidence proved the “surge” to be successful, it was easy to support the continuing war effort in Iraq. But Romney stood up for the tough, but right approach when it was not popular to do so. This speaks very favorably for Mitt Romney.

McCain, of course, is also supportive of success in Iraq. He insists that America secure victory before leaving. He proudly reports that he was a vocal critic of the Bush administration’s military strategy until it was changed (and the “surge” was announced) a little over a year ago.
It seems that the economy has now replaced Iraq as the issue about which most people are concerned, but in my mind, the war on terror and the Iraq and Afghanistan military operations continue to be the most important issues for the nation. The billions of dollars that America has poured into this effort CAN bring the world important and lasting benefits. We cannot ignore the radical terrorism that brings death, destruction and fear to peaceful people around the world. The only issue of significance between Romney and McCain in this area is whether or not waterboarding is torture. There is no consensus among military experts that this is torture. McCain says it is and he denounces it, whereas Romney would not conclude that it was torture. Romney insisted that it was best for America not to spell out all of the details of what kinds of interrogation techniques the nation will and will not use. Despite McCain’s vehement denunciation of waterboarding, Romney’s position is better for the nation, and he did not back down in the face of McCain’s condescending lecturing.

One final comment is in order following the Republican Presidential debate on MSNBC last night (January 24, 2008). In watching the debate, with many questions coming from Tim Russert, and in listening to Russert’s comments after the debate—it is clear that Russert and the liberal media is attempting to resurrect the Iraq war as an issue to take down the Republican nominee when they get to the national election. Up until last night, the economy had become the most important campaign issue. But the problem for Democrats is that the Republicans, and especially Romney, prevail on the debate of this issue. The Democrats are desperate to conjure a way to knock out the Republican nominee, whoever he might be. Thus, after the debate last night, Russert gleefully explained how he had painted all of the top Republican contenders in a corner, because they all supported going into Iraq, and they all supported leaving Iraq victorious. Russert could hardly contain himself as he chuckled that current polls show that six out of ten people today were opposed to initially going into Iraq and want to get out of Iraq immediately. What this means is that Iraq and the war on terror issues will continue to be important issues until the November election. Romney and McCain are on the same page on this issue.

Health Care. Health care is an important issue for most of the nation. Romney’s approach makes sense and avoids drawing the federal government into the arena. Romney’s plan keeps health care in the hands of private industry. Romney’s plan is the perfect answer to the Democratic threat to put universal health care under the control of the government, where there is destined to be inefficiency, waste, increased health care costs, and increased taxes to cover all the newly created waste. Senator McCain has not made health care an important issue in his campaign.

No Child Left Behind. This is the one area where I believe Romney is mistaken in his support because I believe it best to leave education entirely in the hands of the states. I believe this to be the best approach, and it is certainly mandated by the Constitution. At least Romney is seeking to obtain more state control in the implementation of this program. McCain has not made education a key issue is his campaign.

Abortion—Pro Choice vs. Pro Life. Regardless of which nominees emerge from the two parties, this issue will be a clear point of difference between the two parties in November. But for now, on the Republican side, between Romney and McCain, both candidates are pro-life.
Except for McCain’s lapse in judgment in siding with campaign finance reform over life in the Wisconsin Right to Life case, McCain has been a long and consistent supporter of the right to life. Romney is a relatively recent convert to being a political supporter of the right to life. By that I mean that while he personally has been opposed to abortion, he nevertheless supported the right of the woman to choose. Romney admits he erred in this; he points out that he changed his position on this once he was elected Governor of Massachusetts, and that as governor he sided with the right to life in the official acts he took. Romney’s recent conversion makes some conservatives suspect of how genuine his position now is. Romney points out that President Reagan had a similar conversion, and that he became a powerful advocate for protecting the unborn. I am satisfied that Romney’s conversion is real.

The Economy. Mitt Romney has made economic growth a key part of his campaign, and he speaks on economic issues very effectively. Romney’s experience in business for 25 years enables him to effectively present the conservative message on taxes, jobs, foreign trade and the myriad of other economic issues. No other candidate comes close to Romney in this important area, and Senator McCain is no exception. Huckabee tried to use Romney’s experience in economic matters to disparage him, by asking, ”Who would you rather have for President, the guy who works beside you, or the guy who laid you off?” But the truth is that America would rather have as president “the guy who can create jobs and who can make the economy stronger.” That would be Mitt Romney.

If McCain were to win the Republican nomination, this would devastate the Republican Party because many of McCain’s core principles are a repudiation of basic conservative values. While I might vote for him over the Democratic nominee, I would work with fellow conservatives to block him from undermining and changing the core principles of the party. McCain will never convince the conservative base to change their minds. The question is whether he can gain enough support of the more moderate Republicans. I believe that the majority of Republicans are of the same mindset as me in this regard. As a Republican, I have core principled beliefs that I embrace, and which guide me in my political actions and decisions. I will not repudiate my principles. I will exert all the influence I can to help the Party remain true to these principles. I believe that many, if not most Republicans are similarly committed to principles. This does not mean that the Party must be on the right side of every issue—for it is not. But McCain’s position on multiple important issues is such a major departure from these principles that I cannot support him as a leader of conservativism. Thus, if he were to become President, I predict that it would cause great disruption and change in the Republican Party.

But this possible disruption need not occur. Mitt Romney’s political philosophy is much more closely aligned with the party’s conservative base, and would actually be an improvement from the philosophy of President George Bush. Republicans ask “What would Reagan do?” McCain comes up wanting when the question is put to him. Romney does much better.

IV. ROMNEY WILL WIN THE REPUBLICAN NOMINATION

Republicans tend to be people of principal—this is an advantage for Romney. Both men communicate well and have demonstrated good leadership abilities. Each man has personality qualities and deficits, but nothing of great significance, in my opinion. I think the Mormon factor will turn out to be a non-issue. I expect it will be virtually eliminated when some of the evangelical leaders speak up in support of Mitt. Finally, Mitt is younger, more energetic, better looking, and has an attractive family, and brings a noticeable record of business success—all of which will serve him well.

A final note should be made regarding the Republican debate last night on MSMBC. Romney was the clear winner last night. He was given more questions than any other candidate, and his responses were lucid, forceful and persuasive. He was very impressive. McCain did well, too, but Romney looked better. No one is better than Romney in quickly stating his position and then backing that position with facts and reasons. Romney is looking more and more polished. He presents himself as a practical man who understands and can fix the both “Washington” and the national economy. He looks very presidential.

I predict that the majority of Republicans will not be fooled by McCain’s phony “Truth” campaign. I predict that the majority of Republicans will vote for their principles, and that they will reject the notion that they need to abandon their principles (and vote for McCain) in order to defeat the Democratic nominee. Thus, I predict that Romney will win the Republican nomination. And as long as we’re making predictions, I predict that Romney will defeat the Democratic nominee (whether it’s Clinton or Obama) in the November election. More about that later.

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1. The first major draft of this article was written on January 19th and 20th, 2008, right after the South Carolina Republican Primary results were announced. Thereafter, it was revised several times, until it was completed on January 25, 2008.
2. On January 24th, the House passed the stimulus package on which it and President Bush had agreed. That measure now heads to the Senate, where quick approval is also expected.
3. On January 22, 2008, Thompson announced that he was getting out of the race. He did not endorse any other candidate.
4. McCain knows this is his weakness. So he has begun to run television ads in Florida with testimonials from some of his supporters that state that McCain is a conservative. While McCain will insist he is a “conservative,” the problem is his well-known record, where he has consistently separated himself from the conservatives and sided with liberals.
5. Because of the serious limitations that this has on free speech, I have previously addressed this issue in CLU three times: “Campaign Finance Reform Act—A Monument to the Ignorance of the American people and to the Phoniness of Congress,” July, 2002; “The Campaign Finance Reform Case—An Ephemeral and Costly Decision” (McConnell v. FEC), May, 2004; and “FEC v. Wisconsin Right to Life,” October, 2007.
6. McCain was one of only two to Republicans to vote against the tax cuts.
7. I previously addressed this issue in CLU, and explained the need for an amendment to correct the serious harm that court decisions have inflicted on the family. See “A Federal Marriage Amendment—Let the Debate Begin.” May, 2004.

COURT OF APPEALS UPHOLDS STATUTE LIMITING MARRIAGE TO OPPOSITE-SEX COUPLES

On September 18, 2007, the Maryland Court of Appeals issued the long-awaited ruling in the case of Conaway v. Deane (September Term, 2006, Case No. 44), upholding the constitutionality of the Maryland law that “[o]nly a marriage between a man and a woman is valid in this State” (Family Law Article, Section 2-201). The Court of Appeals by a 4-3 vote, rejected the plaintiffs’ arguments that the Maryland law violated both the State Equal Rights Amendment (Article 46) and the Equal Protection Clause of the Fourteenth Amendment. The Court also rejected the argument that there is a “fundamental right” to same-sex marriage.[1]

Background.
Around the country, those who follow the development of gay rights and the effort of gays to secure the right to same-sex marriage had been waiting anxiously for almost a year for the Court of Appeals to rule. Several other states have weighed in on this issue, and except for Massachusetts,[2] all have upheld state marriage laws that restrict marriage to opposite- sex couples. In late 2006, New York’s high court ruled on this issue;[3] and the Maryland Court followed that court’s holding on the main points. Also in 2006, the Supreme Court of New Jersey came down with a ruling that upheld traditional marriage, but ordered its state legislature to create within 180 days a new law providing civil unions for gay partners.[4] But the vast majority of states that have addressed the issue, have resolved it much like the Maryland Court of Appeals. Judge Glen Harrell’s majority opinion gives a thorough treatment of all the key issues.[5]

Even though Circuit Court Judge Brooke Murdock had ruled in favor of plaintiffs (Deane et al, appellees), it was still the plaintiffs who had the greater burden on appeal because the appeal was primarily based upon questions of law rather than questions of fact; and the established law was not on plaintiffs’ side. If Deane et al were to prevail, the Court of Appeals would have to depart from traditional interpretations of the applicable law. Those around the country who have followed this issue saw the possibility that Maryland might depart from traditional interpretations because of its long history of recognizing and legislating rights and benefits for gays. But while Maryland was certainly at the forefront of such national trends, this history had a flip side that argued against the plaintiffs because for the last 30+ years, almost every time the Maryland Legislature would pass a law extending special rights to gays, the Legislature would also pass a disclaimer that specifically qualified the application of such rights—that the bestowal of new rights was not to be construed in any way to affect the Maryland law that limits marriage to only a man and a woman. Thus, while Maryland was at the forefront in recognizing rights for gays, the State also made it specifically clear from the outset that both the State ERA and the bestowal of state rights for gays did not extend to a right to same-sex marriage.

Maryland’s ERA.
With that background, when the case came before the Court of Appeals, the State’s history of recognizing gay rights was of only limited value—it was a double-edged sword, so to speak. The Court first addressed whether the marriage statute’s prohibition of same-sex marriages violated the State ERA. The Court had never before construed the ERA to invalidate the statute restricting marriage to opposite-sex couples. And the majority opinion again declined to do so.

Standard of Review.
The next major issue addressed in Judge Harrell’s opinion was which of the three levels of scrutiny to apply to the Maryland law—strict scrutiny, intermediate scrutiny, or rational basis review.[6] The Court made a lengthy analysis of and rejected plaintiffs’ (appellees’) arguments that gays were a protected class, that heightened or strict scrutiny was warranted, and that there existed a fundamental right to marry someone of the same sex. By a 4-3 vote, the Court found no “protected class,” no “suspect criteria” and no “fundamental right”; and the Court therefore ruled that strict scrutiny was not proper. The Court also failed to find a basis to apply the intermediate (or heightened) scrutiny.[7] The Court held that the rational basis standard was the proper one (Conaway, p. 96).

To satisfy the minimal, “rational basis” test, “a statute reviewed under the rational basis test enjoys a strong presumption of constitutionality, [and] can be invalidated only if the classification is without any reasonable basis and is purely arbitrary” Conaway, at 97, citing Whiting-Turner Contract Co. v. Coupard, 304 Md. 340, 352 (1985). As long as the court can find any conceivable reasonable basis for the statute, it will pass muster. Thereafter, predictably, the Court found that there existed a rational basis for the disparate treatment.[8] The Court held that “the State’s legitimate interest in fostering procreation and encouraging the traditional family structure in which children are born” is an adequate and proper basis to supports limiting marriage to opposite-sex couples.[9] Judge Battaglia, in her dissent, argued that the statute should be subject to strict scrutiny (not rational basis scrutiny), and she further stated that she would have remanded the case for a thorough hearing on the issue of whether or not the State could meet the burden to show that it had a compelling interest to justify the discriminatory treatment.[10]

The Equal Protection Clause.
In determining whether the Equal Protection Clause has been violated, if a challenged law affects a “protected class,” then the Maryland statute could be upheld only if the state had a “compelling interest” to justify the disparate treatment, and only if the court would “strictly scrutinize” the statute and the state interests to make sure that the stringent test had been satisfied. But, if no protected class and no suspect criteria is involved, then the Maryland statute need only satisfy the rational basis test (as explained above). Appellees’ argument that strict scrutiny must be applied was based primarily upon the argument that the marriage law discriminated against a class of people; and they argued that Loving v. Virginia, 388 U.S. 1 (1967) supported this view.[11] But the majority disagreed and held that the Virginia law in Loving was blatant “anti-black legislation” and that the rule articulated in Loving was a prohibition from subordinate treatment of either women to men or men to women, as a class.[12] The majority applied the traditional, most widely accepted interpretation of Loving—that it prohibits classifying males or females as a class in the absence of a compelling state interest. Accordingly, because the Maryland marriage restriction applies to males the same way it applies to females, therefore the statute does not impinge upon the rights of any protected class.[13]

The Fundamental Right Argument.
The remaining major issue in the case was whether or not there existed a “fundamental right” of one person to marry another person of the same sex. To start with, it was acknowledged by all that there is a fundamental right to marry. But the definition of that right was subject to dispute. Deane et al argued that the fundamental right to marry included the right to marry someone of the same sex. But the State countered that the fundamental right to marry has always been limited by the traditional meaning of marriage—that it is between a man and a woman, and that therefore the right to marry has always been limited to the right to marry someone of the opposite sex. The latter interpretation was adopted by the majority.

The Future.
The majority opinion in Conaway v. Deane is 110 pages in length, and the three dissenting opinions added another 130 pages. (Judge Bell concurred with both Judge Battaglia and with part of Judge Raker’s opinion; then Judge Bell added a brief dissent of his own for good measure.) With that many pages of reasoning and rhetoric, one could certainly identify other important parts of the opinions that I have failed to address. And it is not expected that this ruling will end all debate of this important social issue. I don’t think anyone is predicting that the issue is now settled. In Maryland, I would predict that the next forum for this debate will be in the Legislature, where in 2008 I expect to see both a bill to amend the Constitution to restrict marriage to a man and a woman, and opposing bills to both legitimize same-sex marriage and to authorize civil unions for same-sex couples. On that point it is of interest to note that there is now pending before the Supreme Court of California, several “Marriage cases,” which have been combined together, and in which that Court is being asked to rule on the constitutionality of California Referendum No. 22, where the voters rejected civil unions and voted to restrict marriage to only opposite-sex couples.[14]


[1] It is not known at this time whether Deane and the other plaintiffs will petition the Supreme Court for a writ of certiorari, or whether such a petition would be granted.
[2] Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003).
[3] Hernandez v. Robles 855 N.E.2d 1 (N.Y. 2006).
[4] Lewis v. Harris, 908 A.2d 196, 200 (N.J. 2006). The Vermont Supreme Court had ruled similarly in 1999. Baker v. State, 744 A.2d 864 (1999).
[5] At the circuit court level, Judge Murdock had based her ruling on Article 46 (the state ERA) and on the Equal Protection Clause, but not on the basis of a “fundamental right.” The Court could have declined to deal with any issues other than those that were addressed by Judge Murdock. But at the outset of the majority opinion, Judge Harrell explained that the Court would be addressing other issues that are relevant, including the fundamental rights issue.

[6] Conaway, pp. 43-47. At these pages Judge Harrell identified the three types of scrutiny, and then proceeded to discuss which level of scrutiny was warranted to address the Maryland statute.
[7] With regard to the intermediate level of review, the Court addressed the issue of whether or not homosexuality was innate, and implied that if it were that the Court might apply either strict scrutiny or heightened scrutiny. But the Court, after examining various scientific studies on the issue, specifically declined to find homosexuality to be an immutable characteristic. Conaway, pp. 66-70.
[8] Of the dissenting Judges, Chief Judge Bell and Judge Battaglia argued that strict scrutiny was warranted. Judge Raker agreed with the majority, that the rational basis test should be applied (Conaway, Raker, J., dissenting, at p. 5). However, Judge Raker went on to argue that the Maryland statute could not withstand rational basis scrutiny. While Chief Judge Bell argued that “strict scrutiny” applied, he nevertheless concurred with Judge Raker’s analysis that the statute failed to meet the rational basis test. I would submit that Judge Raker’s application of the rational basis analysis is a major departure from the traditional interpretation and application of that test.
[9] Conaway, pp. 98 and 109.
[10] Conaway, Battaglia, J., dissenting, at p. 80. Judge Battaglia correctly pointed out that the case had not yet fully developed and explored: “Neither party has explored this issue in the depth appropriate to an issue of such permanent, transcendent magnitude.” Id. Of course, the case was decided on the basis of summary judgment motions, and the court had only been presented sparse evidence on sociological and societal impact of various child-rearing possibilities, and therefore the court was not in a position where it could properly rule on the compelling interest issue.
[11] Conaway, pp. 37-41. In Loving the Supreme Court held unconstitutional a Virginia Miscegenation statute that prohibited marriages between blacks and whites.
[12] Id., 41.
[13] Appellees argued that the Court of Appeals had previously ruled in Giffin v. Crane, 351 Md. 133, 716 A.2d 1029 (1998), that if a law makes sex a factor in a legal distinction, then the state ERA is violated. However, Judge Harrell pointed out that a review of the reasoning of Giffin in its context made it clear that the Court was speaking of distinctions between men and women as classes. Conaway, at 27. Judge Harrell pointed out that his conclusion is supported by the majority of the federal and state courts that have addressed this issue, including the Court of Appeal of Washington, that stated in Singer v. Hara,522 P.2d1186 (Wash. App. 1974) that to interpret an ERA in a way that requires states to permit same-sex marriages “would be to subvert the purpose for which the ERA was enacted.” Id., at 1194. The three dissenting Judges (Chief Judge Bell, Judge Raker and Judge Battaglia) all agreed with Judge Murdock that this interpretation is erroneous; they argued that since the law prohibits someone from marrying another based upon the sex of the partner, that this is sexual discrimination that violates both the State ERA and the Equal Protection Clause of the Fourteenth Amendment.

[14] That case if both interesting and important. The State’s Attorney General argued successfully against Referendum 22 at the first appellate level, where that court ruled that the Referendum was unconstitutional. The issue in California involves some of the same issues covered by the 2006 New Jersey case (Lewis v. Harris, 908 A.2d 196, 200 (N.J. 2006) ) and the 1999 Vermont case (Baker v. State, 744 A.2d 864 (1999)).