HH: Right now, I’m joined by two friends, two colleagues – Craig Engle of Arent Fox Law Firm, John Eastman of Fowler School of Law at Chapman University. Generally, they would agree on politics, but not on the marriage cases. Craig Engle favors same sex marriage, but he’s a Republican, John Eastman is opposed to same sex marriage. And Craig Engle’s also a heck of a Supreme Court litigator who has filed a Supreme Court brief with a different argument than all the other arguments. And I sent it to Eastman and I said do you want to debate? Eastman said yes. So Craig Engle, let’s start with you. What is the argument that you and your colleague, I can’t remember who your co-counsel is on this brief.
CE: Brett Kappell.
HH: Okay, what is the argument that you have made on the behalf of the Liberty Fund?
CE: Well, first of all, guys, I have to tell you, it’s a real delight for me to be able to talk to the two of you and your listeners about this, because it’s the first time in my life that my two big interests – same sex marriage and campaign finance law, have actually collided together into what I think is one forceful, objective argument. A lot of the arguments in the Supreme Court deal with the 5th Amendment, and an equal protection that same sex couples are being denied by not being allowed to marry. My argument is a 1st Amendment argument. And the rule is everyone has a 1st Amendment right to make a political contribution. That’s settled law. But there is one very important condition that you have to use your own money to make that contribution. In other words, you’re prohibited from using another person’s money to make a political contribution. That makes sense. Now here is the wedding present that the state gives married couples. Married couples are exempt from the prohibition against using other people’s money to make political contributions. Using kind of traditional language, let’s say that there is a husband and a wife, and he’s the breadwinner, and she’s the stay at home mom. They sit down and decide that they want to make a political contribution. They both give $5,000 dollars to the governor from the husband’s income. That’s one income, but two contributions. A same sex couple is prohibited from doing that, because it’s only spouses that are allowed to use each other’s money in contributions.
HH: So Craig, the same sex couple, for whom there’s only one breadwinner and the other one is staying home, and Modern Family, let’s use that as the paradigm, because obviously, there’s a same sex couple in Modern Family where one man works as a lawyer, and the other man stays home and takes care of the kids. And they can only give $5,000, but the traditional heterosexual couple can give $10,000. John Eastman, do you have a problem with that setup?
JE: I don’t at all, and here’s, the line in the brief that I think is dispositive and why the brief is wrong, on Page 4, it says this results in similarly situated couples having unequal rights. They’re not similarly situated with respect to the reason the state has marriage laws. The core reason a state is involved in every marriage is not because out of recognition of the dignity of the relationship or anything else. It’s because of one reason, because a state has a keen interest in channeling the unique procreative ability of men and women into an institution that is beneficial to the children that are the offspring of that relationship. No other relationship is similarly situated to that, and we just ignore nature and reality to say that they are similarly situated. The second flaw in the argument in this brief is that even if I accept the claim, the challenge is not to the marriage laws, but is to the campaign finance law, and the so-called discrimination between a spousal couple and a non-spousal couple in having this exemption from the law. Well, that’s a challenge to the campaign finance laws, not to the marriage laws. And so for both of those reasons, you know, it’s a clever argument, but it’s a bit too clever by half.
HH: It’s covered in the National Journal today, and John Eastman, let me come back at you with this. In most states, common law marriage is a fact, that if a heterosexual couple is together for a long period of time, they are considered married by the state. I don’t know if the federal campaign finance laws allows them to give the $10,000 dollars. That’s what I don’t know. If it did, would you then have the same argument, if in fact, do you think there’s a Constitutional problem with a long-joined heterosexual couple that never received a marriage vow or blessed by the state, but they’ve been together for 35 years, being constrained in their federal contributions? Do you have a problem with that?
JE: I don’t have a problem.
JE: Yeah, no, look. Look, let’s assume the federal government does recognize a common law marriage. It is still not similarly situated to the same sex marriage, because it is serving different purposes of interest to the state, a keen interest, a compelling interest to the state. Two men cannot produce children. It’s as simple as that. And the reason the state got involved in the marriage business in the first place was to channel that unique procreative ability into this institution, because…
HH: Now let me interrupt. Craig, I think John might have just given Justice Kennedy something to write about here, because two men can raise children. And if they’re raising children, they might be as interested in politics as a heterosexual couple is, and prohibited from participating to the same extent, even though they are raising children. Again, I go to the Modern Family family.
CE: That’s right, and I do appreciate both the point and the passion of John’s argument. And I would concede that a same sex couple and a heterosexual couple are not identical. But I do think that they are similarly situated in the fact that they are part of and create families. Maybe they lack the ability by nature to bring a child into this world, but not by nurture.
HH: John, isn’t it also possible that this is the opportunity to strike down campaign finance contribution limits, which is the real problem?
JE: Yeah, that would be fine. If there’s any merit to this, then the challenge, the equal protection challenge is that a campaign finance law to give an exemption in the one instance and not in the other. But it’s not going to the marriage laws. And the notion that we can play with the words, it’s not nature, but it is nurture, well, that makes them not similarly situated on the key reason we have the state involved in marriage in the first place.
HH: Yeah, but there is a problem. This is why, and John, you know I’m with you on this, and not with Craig. But here’s the problem I have. If you’re a same sex couple and you’re raising children, you have an interest in politics. You might want the child tax deduction up. And you don’t get to participate in politics to the same level as the heterosexual couple because of these restrictions on campaign finance laws. And they drive me crazy.
JE: Well, then challenge the campaign finance law. But don’t challenge the marriage law, because that, it does two things. One, it redefines the institution away from one of its core aspects. And we saw in the no fault divorce controversy 40 years ago where we redefined the permanence out of the institution, it’s had devastating consequences. And if you redefine this thing so it’s got nothing to do with gender, and therefore nothing to do as a matter of law with the unique procreative ability of women, you will severely undermine the institution’s strength for pursuing that purpose. We’re already seeing data coming in from the Netherlands and others where it is just devastating in its consequences. So that’s why the state is interested in this, and why arguments like this, if there’s any merit to it at all, it’s to a challenge of the campaign finance laws, not to the marriage laws.
HH: Craig Engle, I want to give the last word to you. A National Journal article today puts this at the front of the page. Do you think your brief gets read by the justices as a result of the attention being paid to this argument?
CE: Actually, I do, because it is a standout argument. It’s based on a completely different amendment. And justices have families. Some of them are married, some of them are not. If anybody could stand up there and look one of them in the eye and say you get two contribution limits, but over there, you only get one, I think that would raise more than eyebrows.
HH: And John Eastman, last word to you, do the justices read the coverage?
JE: They’ll read the coverage, but here’s what the most it will get in an opinion from the Court, is a footnote by somebody saying somebody raised a very interesting argument in an amicus brief. We need not address it, because the parties didn’t raise it.
HH: Oh, but Craig Engle, you already said that they did, a justice in Judge Sutton’s argument.
CE: There is a great footnote in my amicus brief, if I can be so happy to say, that talks about the fact that the laws in Ohio were struck for all purposes and for all incidences. And even though that this wasn’t raised by a party, it is something within the umbrella of that decision, so I’m happy that it’s a wide open discussion, as it was with Windsor.
HH: John Eastman, do you think that language in Judge Sutton’s opinion opens the door to the 1st Amendment challenge?
JE: I don’t. I don’t. I’d be very surprised if it’s even mentioned in a Court opinion. But if it is, it’ll just be, they raise an interesting issue, but the challenge would be to the campaign finance laws. That’s not at issue in this case.
HH: Can a same sex couple bring the challenge to the campaign finance laws?
JE: Well, sure they could.
HH: What do you think of the…
JE: They could claim that it’s denying them equal treatment. Unless the Court radically redefined its standard of review, it’s going to get rational basis review, and it’ll lose on those grounds.
CE: I would be more interested in a same sex couple trying to create a ballot referendum to strike a prohibition as state has on this. Now remember, in states, there are contribution limits to ballot referendums. The husband and the wife, they get two contribution limits to keep the prohibition in place on the ballot. The same sex couple only gets one.
HH: And it’s out of the left field park. It’s a very interesting read at the National Journal today. Craig Engle, John Eastman, thank you both.
End of interview.