Earlier this year, defenders of marriage as we have known it enjoyed a string of victories in the courts. Several state and federal courts turned back challenges to states’ marriage laws, leaving it to voters and state legislators to decide whether those laws should be changed to allow for legal recognition of same-sex “marriages.”
At the time, some commentators took the decision as proof that constitutional protection for marriage was unnecessary. Those of us who had warned that the courts were going to impose same-sex marriage on a balking public were dismissed, as we have been before, as alarmist.
Our response was twofold. First, we pointed out that the tenor of the judicial decisions was in part a response to the political success of the campaign for the marriage amendment — without it, more courts would have followed the lead of the Massachusetts high court, imposed same-sex marriage, and patted themselves on the back as civil-rights pioneers. Second, we observed that as welcome as those decisions were, traditional marriage laws — and the right of the people and their elected representatives to draw them up — would exist only on judicial sufferance without an amendment. If the judicial mood changed, for example because the campaign for an amendment had flagged, then judges would recommence altering the marriage laws. And, of course, some bold court might decide to impose its conception of justice, political consequences be damned, by rewriting the marriage laws.
New Jersey’s supreme court has, alas, now proven us right. Even in that liberal state, protective of gay rights, the political process did not yield the marriage policy liberal legal activists have sought. So they have gotten the court to hand them victory.
It is being described as a partial victory, because the court has said that same-sex couples must have access to the same benefits as married ones but not that they must be eligible to be called “marriages.” Do not be fooled. The court has accepted the premise that treating married couples differently from same-sex couples is a kind of irrational discrimination. That premise leads fairly directly to same-sex marriage in logic, and may do so in future litigation.
There is another reason to expect this attempt to split the benefits from the name of marriage will collapse. Portability is a real benefit of a state-recognized marriage. When Texas declares you married, in the normal course of things Arkansas does too. You can cross state lines without worrying whether your marriage remains legally valid. For good reasons, the federal government has allowed states not to recognize same-sex “marriages” in other states. Whether that federal policy will withstand the activism of liberal courts remains to be seen. But even if it does, same-sex couples in New Jersey may legitimately ask: If we are to have all the benefits of marriage on an equal basis, then are we not entitled for the state to give us the best shot it can at ensuring that those benefits are portable? And does that not mean that we are entitled to the word “marriage” as well as to its accoutrements?
The basic move that the New Jersey court made was from a constitutional guarantee of equality to same-sex marriage rights. It is the same move that has been made in other courts. And it is the same move that has been made by social liberals in the court of public opinion: To deny marriage to same-sex couples is, supposedly, to treat homosexuals as less than full citizens. Not a few advocates have even said that it is to treat them as less than fully human.
Against this sentiment, conservatives have countered first that equal rights for individuals do not entail a right of couples to have marriage redefined to suit their desires, and second that it would not be up to courts to draw out that implication even were it true. There is an argument for letting the people of each state decide their own policy on marriage, although a uniform national definition of marriage has its advantages too. But there is no good argument for letting judges redefine marriage in one state after another and calling it federalism.
A healthy culture of marriage is, among other good things, a crucial prerequisite for self-government. We fear that both marriage and self-government will suffer if a constitutional amendment does not rein in the courts.