Before The Storm
What's next in the marriage debate?


EDITOR’S NOTE: This editorial appears in the (forthcoming) May 31, 2004, issue of National Review.

By order of its supreme court, Massachusetts will start giving marriage licenses to same-sex couples on May 17. We are not sure what will then happen. Will a public opposed to same-sex marriage be outraged enough to force corrective action? Or will it quickly grow used to the idea? How long will it take for other state courts to import Massachusetts marriages to their jurisdictions? Our hope is that the public reaction to Massachusetts will force the passage of a constitutional amendment blocking the courts from imposing same-sex marriage or civil unions. As we wait to see what happens, it may be a good time to restate our reasons for supporting an amendment.

We support an amendment for two basic reasons: We oppose both judicial lawlessness and same-sex marriage. Many conservatives seem tongue-tied on both points at the moment. It is sometimes supposed that opposition to same-sex marriage is legitimate only if it can be shown that it would have negative consequences that social scientists can measure: if it would reduce rates of marital stability, or by some chain of causes prove bad for children. We do not doubt that same-sex marriage would have substantial negative social consequences. But these consequences would derive from a more fundamental moral flaw. The law would now be teaching that marriage is not what it is, and is what it is not; it would be teaching that same-sex relationships have the same moral status, and should have the same social status, as marriages.

Marriage would not exist in the first place if the conceiving of children were not a regular consequence of heterosexual sex, and it would not have any legal importance if the law were held to have no role in shaping a society’s morality. Marriage regulates and ennobles the natural truth of heterosexual coupling, making that coupling the biological foundation of a complete sharing of life. Our culture and law have moved away from this idea of marriage in many ways, but not entirely. We do not need legal changes that move marriage, and thus society, even further away from an orientation toward the rearing of children by their parents.

One common confusion can be dispelled here. We are not saying that we oppose same-sex marriage because homosexuality is immoral. It’s more the other way around. An adverse judgment of homosexuality rests on the prior judgments that sex properly belongs to marriage and that homosexual unions cannot be marriages.

If same-sex marriage were triumphing as a result of popular support, it would be pointless to try to stop it by constitutional amendment. But that is not what is happening. Judges are imposing it on the theory that constitutional guarantees of equality and due process entail it. But the law discriminates against no person by maintaining marriage as what it is. The law makes no inquiries into sexual desire: A gay man and a lesbian can get married in any state, if they so choose. The question here is one of definition, not eligibility.

Judges have the power, indeed the duty, to vindicate individual rights that the people, acting through legislatures and the formal amendment process, have decided the government should recognize. It cannot plausibly be said that the people ever decided that two persons of the same sex have a right to marry each other. That judges nonetheless are capable of reaching this result is a testament to the way we have become used to their seizing certain constitutional terms as a warrant for freewheeling political philosophizing. That kind of amendment from the bench now threatens to take another important subject from the people’s jurisdiction. We should say no, and the only way to do that is by a constitutional amendment.

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