Marriage, Democracy, and the Court
It’s unconstitutional for activist judges to settle the marriage debate.



A hallmark of democratic self-government is that the people should discuss, debate, and vote on important policy matters. And in America their votes should count, except when they clearly violate the people’s more settled will as expressed in the U.S. Constitution. Where the Constitution is silent, the task of a conscientious judge is to respect the constitutional authority of citizens and their elected officials.

That’s what’s at stake in the two marriage cases on which the Supreme Court is expected to rule within the next week or so.

A recent New York Times/CBS News poll found that “a solid majority of Americans opposes a broad national right to same-sex marriage.” Americans do not want the Supreme Court to redefine marriage for the entire nation.


And earlier this week, the Pew Research Center reported that media coverage has been overwhelmingly biased, by a factor of five to one, in favor of redefining marriage to include same-sex couples. Pew also found that ordinary Americans taking to social-media sites such as Twitter have been split more or less evenly.

That’s the reality of the discussion right now in America: We’re in the middle of a debate, with neither side’s position “inevitable.” This discussion is healthy for our democratic republic. And it would be wrong for the Supreme Court to shut down this conversation prematurely.

Of course, liberals want the Court to do just that. After President Obama “evolved” on the marriage issue, he called on the Court to declare unconstitutional the view he held for most of his first term. By contrast, when Senator Rob Portman (R., Ohio) shifted his view on marriage, he explicitly made clear that if marriage policy is to change, it must be through democratic processes.

That’s the difference: Liberals want judicial activism to advance their social engineering.

And it gets worse.

President Obama instructed Attorney General Eric Holder not to defend the Defense of Marriage Act (DOMA), which Congress passed in 1996. The governor of California told the state’s attorney general to do the same with respect to Proposition 8, which was passed by popular vote of the citizens of California.

This is a scandalous dereliction of duty. The abdication of the constitutional responsibility to defend the laws passed by citizens and their elected representatives sets a disturbing precedent.  Their inaction also distorts the balance of powers among the legislative, executive, and judicial branches of government. This tactic allows the executive branch to effectively veto any duly enacted law, simply by refusing to defend it against a constitutional challenge.

Whatever your views on the policy merits of redefining marriage, all Americans should be loud and clear on this: Activist courts shouldn’t silence the voices and votes of citizens. There is nothing in the text, history, logic, or structure of the Constitution that requires the redefinition of marriage.

Of course, some beg to differ. So what are these two cases before the Supreme Court? And what’s at stake?

One case concerns DOMA, which was passed by overwhelming majorities in both houses of Congress and signed into law by President Bill Clinton. DOMA defined marriage for purposes of federal law, making explicit what was understood at the time of our country’s founding — that marriage is the union of one man and one woman.

Some have argued that Congress lacks authority to make marriage policy for federal purposes and that it has to accept whatever definition of marriage the states come up with. But this view gets our Constitution and federalism wrong. Just as the states have constitutional authority to make state policy about marriage, so too Congress may pass a federal statute defining a term for federal programs created by federal law. Indeed, Congress has legislated legitimately on marriage more than 1,100 times. DOMA only made clear that Congress meant one man and one woman when it used the words “marriage” and “spouse.”

Some try to argue that what really is unconstitutional isn’t Congress making this law, but anyone’s making a law that defines marriage as the union of one man and one woman. That view is at the center of the other marriage case before the high court, concerning California’s Proposition 8.

Prop 8 is a state constitutional amendment approved by California voters in 2008; it defines marriage for state purposes as the union of one man and one woman. This case provides the Supreme Court with the opportunity to reject faulty arguments that laws defining marriage as between a man and a woman violate the equal-protection clause of the U.S. Constitution.

Equality demands that we treat in the same way things that are the same. But a same-sex relationship is fundamentally different from a marriage. No same-sex union can produce a child. And no same-sex relationship can provide a child with a mother and a father.