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


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Some supporters of redefining marriage appeal to the civil-rights movement and interracial marriage. They argue that laws defining marriage as a union of a man and a woman are unjust — that they fail to treat people equally — exactly like laws that prevented interracial marriage.

Yet such appeals beg the question of what is essential to marriage. They assume that gender is as irrelevant as race when it comes to making policy about marriage. But the relevance of gender to marriage is the exact question we need to debate, rather than preemptively discarding it without discussion, as advocates of redefinition seem to do.

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Marriage must be color-blind, but it cannot be gender-blind. The sexual difference between a man and a woman is central to what marriage is. Regardless of their race, a man and a woman can unite in marriage, and children regardless of their race need mothers and fathers. To acknowledge such facts requires an understanding of what, at an essential level, makes a marriage.

By contrast, race has nothing to with marriage. Anti-miscegenation laws were designed for the wicked purpose of keeping the races apart. Marriage unites the two halves of humanity — male and female — for good social ends.

The state isn’t interested in our love lives because it cares about romance. Rather, government has an interest in marriage because it is society’s best way to ensure the well-being of children. State recognition of marriage protects children by encouraging men and women to commit to each other and take responsibility for their children.

Redefining marriage would further distance marriage from the needs of children and would deny, as a matter of policy, the ideal that a child should have both a mother and a father. After all, it’s hard to insist that fathers are essential when the law has redefined marriage to make fathers optional. Delinking childbearing from marriage would force the state to intervene more often in family life and expand government welfare programs.

Redefining marriage does not simply expand the existing understanding of marriage. It would legislate a new principle: that marriage is whatever emotional bond the government says it is. But redefining marriage to abandon the norm of male-female sexual complementarity also would make other essential characteristics — such as monogamy, exclusivity, and permanency — optional, as leading LGBT scholars and activists admit. Marriage cannot do the work that society needs it to do if these norms are further weakened.

Redefining marriage is also a direct and demonstrable threat to religious freedom because it marginalizes those who affirm marriage as the union of a man and a woman. This is already evident in Massachusetts, Illinois, and Washington, D.C., where Christian adoption agencies have been forced to shut down.

We tend to forget that marriage predates government. Throughout history, diverse cultures and faiths have upheld marriage as the ideal. It is the fundamental building block of all human civilization. Marriage has public purposes that transcend its private purposes.

Whatever pollsters and pundits might tell us about “inevitability,” the only way to guarantee a political loss is to sit idly by. Defenders of marriage need to frame their message, strengthen coalitions, devise strategies, and bear witness.

No one can deny that Americans’ support for marriage is not what it once was. This is largely because we have not explained well what marriage is, why marriage matters, and what the consequences will be if we redefine it.

To fill this void, the Heritage Foundation has worked with our allies at the Alliance Defending Freedom, the Family Research Council, and the National Organization for Marriage to produce a pamphlet using everyday language to explain, in Q&A style, why marriage matters. (You can download a free e-book at TheMarriageFacts.com.)

But whatever one thinks about marriage, it’s clear that the courts shouldn’t be redefining it. We should work out marriage policy through the democratic process, rather than allowing unelected judges to dictate it through decisions that have no grounding in the text or logic of our Constitution.

Ryan T. Anderson is the William E. Simon fellow at the Heritage Foundation and editor of Public Discourse, the online journal of the Witherspoon Institute. He is co-author, with Sherif Girgis and Robert P. George, of What Is Marriage? Man and Woman: A Defense.



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