Once upon a time, not so long ago, we lived in a nation where power not specifically granted to the federal government was reserved to the states. The U.S. Supreme Court reminded us of that basic principle only 16 months ago when it invalidated a part of the federal Defense of Marriage Act defining marriage, for purposes of federal law, as the union of one man and one woman. The majority did so because marriage has historically been regulated at the state level, and, according to the Court’s decision, the federal government could not use a definition of marriage that failed to respect a state’s definition.
Oh, how far we’ve come in the intervening months, to the situation the state of Kansas finds itself in today. Kansas, like more than 30 other states, exercised its sovereign right to define marriage as the union of one man and one woman, and did so with 70 percent of the state’s electorate in agreement. However, a federal judge ruled that the state’s traditional marriage laws violate the Constitution, and in the process he did just what the Supreme Court said could not be done — substituted a federal definition of marriage that supplants a state’s definition. That type of judicial activism has become all too familiar. Then, we witnessed a head-jarring scenario that is also becoming all too familiar: The U.S. Supreme Court granted a temporary stay of the lower court order, and then abruptly canceled it.
Is the Supreme Court playing some sort of game with the American people and the individual states, recklessly allowing lower-court judges to issue illegitimate decisions while the Court sits idly by and watches? Whatever its intent, the Supreme Court is creating a constitutional confrontation with the states, pitting their sovereign right to define marriage against activist federal judges who feel entitled to redefine marriage despite both binding Supreme Court precedent (Baker v. Nelson) and the rationale of the Court’s most recent ruling on marriage (Windsor v. United States).
To make matters worse, by refusing to issue a ruling on the merits of the marriage issue, the Supreme Court is allowing chaos to reign across the land. Voters are left to watch helplessly as the laws they’ve enacted are ignored, and public confidence in the integrity of the judicial system is eroded.
While voters may be helpless to do anything, states are not. It’s time for states to push back and put a stop to this unconstitutional usurpation of their right to define marriage. This push should start with Kansas.
Governor Sam Brownback has been a staunch defender of marriage. More than that, he’s a staunch defender of the voters of his state. In 2005, with the overwhelming margin of 70 percent of voter support, Kansans passed their constitutional amendment confirming the state’s historic understanding of marriage as the union of one man and one woman. We urge Governor Brownback to use his authority to order local clerks to refuse to issue marriage licenses in violation of state law. Although doing so obviously creates a conflict with the opinion of some federal judges, Kansas has every right to insist that this conflict be resolved by the Supreme Court. In the meantime, the state should not allow the spectacle of seeing its duly enacted laws ignored until the Supreme Court finally gets around to doing something.
This course of action not only is warranted as an appropriate exercise of state sovereignty but is especially appropriate in light of the fact that numerous federal courts, including the Sixth Circuit Court of Appeals and district courts in Louisiana and Puerto Rico, have upheld state marriage amendments like Kansas’s.
It is absolutely the right of the states to define marriage as the union of one man and one woman. The Supreme Court has never held that traditional marriage violates the Constitution. Fifty million Americans in over thirty states have voted in support of traditional marriage, and it’s time that states fight back to protect the decision of those voters.
Governor Brownback can do a great service to Kansas, and to the American people, by exercising his authority and refusing to permit local and state officials to issue marriage licenses that violate state law. If the U.S. Supreme Court objects, then it should get off the sidelines and issue an opinion on the constitutionality of state traditional marriage laws. At least until then, states should not cede their sovereignty to unaccountable federal judges.
— Brian S. Brown is the president of the National Organization for Marriage.