Marriage: democracy on trial

DOUG WARDLOW: The Supreme Court’s upcoming decisions will shape the culture . . .

Doug Wardlow

by Doug Wardlow

The U.S. Supreme Court heard oral arguments in Obergefell v. Hodges on April 28. As the arguments progressed, countless court watchers, politicos, lawyers, and others (myself included) were glued to their computer screens, eagerly awaiting live-blogged updates on the proceedings from inside the courtroom.

The high court expedited the release of transcripts and audio of the arguments, posting them on its website shortly after the proceedings concluded. Within minutes, a multitude of attorneys, reporters, analysts, and activists had downloaded, dissected, and devoured them, scrutinizing the justices’ every word for signals as to how each might be disposed to rule (a futile exercise).

Later this month, the Supreme Court will decide whether the people of our republic will remain free to affirm marriage as the union of one man and one woman in the laws of their respective states. To anyone who values liberty, democracy, and the rule of law, the feverish antics surrounding the oral arguments in the marriage cases should be more than a little disturbing.

Arguing in 1788 that Americans had no cause to fear the federal courts which the newly proposed Constitution would set up, Alexander Hamilton wrote in Federalist No. 78 that the judiciary possesses “neither force nor will, but merely judgment.”

The experience of the last 227 years suggests that Hamilton overstated his case. Now, opponents of marriage (that is, those who oppose the man-woman definition of marriage that has persisted in all human cultures for millennia) are asking the Supreme Court to force every sovereign state in our federal republic to adopt an entirely novel “any two persons” definition of marriage — an exercise of will, not judgment.

The power of the Supreme Court to circumvent the democratic process shifts public attention away from the people and toward the court — hence the hosts of Americans hanging on the justices’ every utterance like supplicants to a king.

The opponents of marriage say that they simply want the Supreme Court to invalidate purportedly unfair state laws that bar same-sex couples from marrying. But that is not true. In fact, they want the Supreme Court to stand in judgment over the ancient, pre-political institution of marriage itself. They want the court to repudiate the combined judgment of billions of human beings from cultures spanning the globe, transmitted through cultural and legal traditions reaching back millennia, that the life-producing union of a man and a woman is fundamental to human flourishing and worthy of special protection. They want the court to deny the people the freedom to affirm the definition of marriage that is apparent in God’s design of mankind.

Nothing in the Constitution, however, justifies redefining marriage. Man-woman marriage laws do not run afoul of the Constitution’s equal-protection requirement. States recognize marriages so that, to the greatest extent possible, children will be raised by their mother and father. A man-woman couple can naturally procreate and provide the resulting children with both a mother and a father. A same-sex couple cannot. The Equal Protection Clause does not require the states to treat differently situated groups the same.

Moreover, there is no right to same-sex “marriage,” let alone a fundamental one. To establish a fundamental constitutional right, it must be deeply rooted in the history and traditions of the nation. This is clearly not true of same-sex “marriage.” For all of American history until a Massachusetts court ruling in 2003, marriage was universally understood to be the union of a husband and a wife.

The opponents of marriage seem unconcerned about the serious consequences that will flow from the radical transformation of society’s most fundamental institution. Redefining marriage to include same-sex couples will disconnect marriage from procreation and natural family formation. It will enshrine in our Constitution a view of marriage that focuses on the desires of adults rather than the needs of children. And it will send the message that children do not deserve to be raised by both their mother and their father — a message that over time will lead to many more children being raised apart from one or both of their biological parents.

In a democratic republic like ours, such weighty matters of public policy should be decided by the people of each state and their representatives, not by unelected jurists. Public attention, discourse, and debate should focus not on oral arguments before a court, but on legislative processes that the people can meaningfully influence at the ballot box.

DOUGLAS WARDLOW is legal counsel with Alliance Defending Freedom.