Over the past two days, the Supreme Court has been considering whether to overturn two duly enacted pieces of legislation — the federal Defense of Marriage Act and a California constitutional amendment — on the basis of novel theories about the Fourteenth Amendment that had occurred to almost nobody until quite recently. It should let the laws stand.
In the California case, a popular referendum ratifying the definition of marriage as the union of a man and a woman is said to violate the Constitution’s guarantee that states will extend the “equal protection of the laws” to all persons, including those persons in same-sex couples who wish to have the state government declare their relationships to be marriages.
Equality means that like cases should be treated alike. Whether California’s definition of marriage meets that standard depends on whether or not there is some difference between opposite-sex and same-sex couples that justifies recognizing some of the former and none of the latter as marriages in the eyes of the law. The answer to that question in turn depends on what we understand marriage to be.
It turns, that is, on whether marriage should be understood to have an ineradicable connection to procreation or be understood exclusively in romantic terms. If the basic purpose of marriage as a pre-political institution and a public policy is to channel heterosexual behavior into the social forms most likely to lead to stable child-rearing, as we believe, then it makes sense that its definition includes sexual complementarity and involves no invidious discrimination. Many people do not, of course, accept this premise, and they have advanced various arguments against it.
The Constitution is silent — obviously silent — about which side is correct, and that is reason enough for the Court to allow California to decide the matter as it wishes, which of course means to allow it to change its mind. The Court should forthrightly declare that the Constitution gives it no authority to choose one side or the other. It should reject calls for it to “punt” by ruling that defenders of the law have no standing to plead their case, which would have the effect of allowing lower-court judges to write same-sex marriage into the Constitution for their jurisdictions.
Justice Scalia neatly exposed the weak spot of the argument that the Constitution requires same-sex marriage when he asked Ted Olson, a lawyer making that argument, when that requirement came about. Olson declined to make the ludicrous contention that the adoption of the Fourteenth Amendment in 1868 was the public’s way of advancing same-sex marriage. That left him arguing that the evolution of the culture had changed the meaning of the amendment. Public views on homosexuality and marriage certainly have changed: But that change can be and has been expressed in the votes of citizens and legislators.
The other case before the Court is a challenge to the provision of the Defense of Marriage Act that defines marriage, for purposes of federal law, as the union of a man and a woman. Here the challengers make an argument beyond their equal-protection claim. The federal government is supposedly infringing on the states’ power to set marriage laws by insisting on its own definition in its own laws.
One would think that to state that claim is to refute it, but Justice Kennedy showed signs of crediting it. The act leaves states free to adopt any marriage law they want. The Constitution does not compel the federal government to use the states’ definitions in its own laws, although it may decide to do that as a matter of administrative convenience. If the federal government has the power to designate some households in tax laws as joint filers — which no one contests — then it has the power to say which households, and so long as its classifications are compatible with the Constitution it cannot matter if they track state law. Federalism does not, in other words, mean that state governments have the right to force federal law to change to their liking. Chief Justice Roberts exposed the emptiness of this “federalism” argument when he asked whether the federal government would invade the province of the states by extending marriage-related federal benefits to all cohabiting same-sex couples in all states, even those that recognize no such couples as married or even in a civil union. The opponents of DOMA were appropriately flummoxed by the question.
In both cases, the Court should leave lawmaking authorities to do their will. We oppose same-sex marriage, but in the absence of a constitutional amendment enshrining our view it would be wrong for the Supreme Court to block it — and nobody has ever argued otherwise. Proponents of same-sex marriage feel no such inhibitions. The Supreme Court should be more dispassionate.