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Marriage and Self-Government

Judge Vaughn Walker of the U.S. district court in San Francisco

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On Friday afternoon, the Supreme Court announced that it will hear arguments in two cases that are at the center of the same-sex-marriage controversy. One concerns the power of people in the states to govern themselves on the question, the other the complementary power of Congress to define “marriage” for purposes of federal law.

At issue in both cases is whether courts should even be hearing them, because there are knotty questions of standing (and also of what should happen to lower-court rulings if the Court rules that parties did not have standing). If the Court does reach the merits in these cases, it should find its way toward a defense of the right of republican self-government.

In Hollingsworth v. Perry, the justices will consider the constitutionality of Proposition 8, an amendment to the California constitution affirming that marriage is the union of a man and a woman. The people of the state passed it by referendum in 2008, shortly after the state supreme court ruled that the state constitution, unbeknownst to anyone until then, required official recognition of same-sex marriage. In the federal lawsuit that followed, Judge Vaughn Walker of the U.S. district court in San Francisco conducted a sort of show trial, ignoring all relevant precedents in holding that the protection of conjugal marriage rests on irrational bigotry.

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This decision went too far even for a Ninth Circuit panel led by the oft-reversed Judge Stephen Reinhardt. The appeals court affirmed Judge Walker’s decision but did not imitate his reasoning, holding instead that, having recognized same-sex marriage, California could have had no rational basis for changing its mind.

The Supreme Court should reverse these lower-court rulings, and straightforwardly affirm the right of the people in any state to act, constitutionally or legislatively, to adopt the traditional view of marriage as a relationship oriented toward procreation. The justices need not themselves hold that view — they may consider it outmoded or rationally inferior to a conception of marriage that treats it first and foremost as an emotional union of adults — to see that the Constitution erects no barrier to it, and that states therefore have the freedom to act on it.

Of the various arguments advanced for a constitutional “right” of same-sex marriage, none withstands even momentary scrutiny by accepted standards. Are gays and lesbians a powerless and oppressed minority? One can hardly say that after the November elections, in which the cause of same-sex marriage was victorious in four states, in a year when it was also embraced by the president of the United States and enshrined in the platform of the larger of our major parties. Is it rationally indefensible to reserve the institution of marriage to the only kind of union — one man and one woman — that is capable of procreation, and to the kind of union that is proven to be the best general setting for the rearing of children? The question answers itself.

Are laws protecting this time-honored institution founded upon a culpable animus against persons of homosexual inclination? Such a conclusion would rest on three errors. First, it would confuse the law’s purpose with the putative motives of some who support it. Second, it would accuse some citizens — citizens holding moral opinions about behavior that the Constitution plainly permits them to act upon — of a personal animosity of which they are not guilty. Finally, it would be blind to the plain fact that in a society that is increasingly open and tolerant regarding homosexuality, many Americans find it easy to join in such welcoming attitudes while believing quite sensibly that governmental recognition of same-sex couples as married is incompatible with the purpose for which marriage policy exists in the first place: to foster stability in the sort of relationships that can give rise to children.

In U.S. v. Windsor, the Court — again, should it reach the merits of the case — should decide in favor of the Defense of Marriage Act’s provision that, for purposes of federal law, only marriages between a man and a woman are recognized. The federal government is certainly authorized to limit its recognition where federal rights, privileges, and benefits are concerned while the nation is caught up in the throes of deciding, state by state, whether marriage is to be radically redefined.

Should the American people ultimately decide to take this course — an unwise one, but one that the Constitution certainly allows — then they may democratically decide to repeal this protective federal legislation. But it is not the place of judges to decide for them, or to force the issue. 



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