The
Daily Signal
Court
Rules Marriage Must Be Redefined Under 14th Amendment. Why That’s
Wrong.
Ryan
T. Anderson
June
25, 2014
Photo:
Getty Images
Today
the 10th Circuit Court of Appeals issued an important ruling on
Utah’s marriage amendment. This is the first time a circuit court
has ruled on marriage since the U.S. Supreme Court’s ruling on the
federal Defense of Marriage Act (DOMA) this time last year. In a 2-1
split decision, the 10th circuit ruled that Utah’s marriage
amendment defining marriage as the union of a man and a woman
violates the 14th Amendment of the U.S. Constitution.
The
majority held that “the Fourteenth Amendment protects the
fundamental right to marry” and that “a state may not deny the
issuance of a marriage license to two persons, or refuse to recognize
their marriage, based solely upon the sex of the persons in the
marriage union.” The decision will almost certainly be appealed.
Of
course the Fourteenth Amendment protects the fundamental right to
marry—but the Supreme Court decisions that established a
fundamental right to marry understood marriage as the union of a man
and a woman. In issuing today’s ruling, the court implicitly
supplied its own, new answer to the central question in this debate:
what is marriage?
The
only way the 10th Circuit could reach its decision today was to
smuggle in a view of marriage that sees it as an essentially
genderless institution and then declare that the Constitution
requires that the States (re)define marriage in such a way.
But
our Constitution is silent on what marriage is. And there are good
arguments on both sides of this debate. Judges should not insert
their own policy preferences about marriage and declare them to be
required by the Constitution.
Indeed,
this is the message that Judge Paul Kelly delivered in his dissenting
opinion in today’s case. Quoting Supreme Court Justice Samuel
Alito, Judge Kelly explains: “‘Same-sex marriage presents a
highly emotional and important question of public policy—but not a
difficult question of constitutional law,’ at least when it comes
to the States’ right to enact laws preserving or altering the
traditional composition of marriage.”
Kelly
continued:
The
Constitution is silent on the regulation of marriage; accordingly,
that power is reserved to the States, albeit consistent with federal
constitutional guarantees. And while the Court has recognized a
fundamental right to marriage, every decision vindicating that right
has involved two persons of the opposite gender.
Kelly
explained that we need not seek from the courts a single 50-state
answer: “If the States are the laboratories of democracy, requiring
every state to recognize same-gender unions—contrary to the views
of its electorate and representatives—turns the notion of a limited
national government on its head.”
In
citing Justice Alito, Judge Kelly hit on an important point—that
there are competing policy arguments on the definition of marriage
and that in a system of limited constitutional self-government, the
people and their elected representatives should be making these
decisions.
Justice
Alito’s opinion on DOMA cited my book, What Is Marriage? Man and
Woman: A Defense, as an example of one view of marriage: a
“comprehensive, exclusive, permanent union that is intrinsically
ordered to producing new life.” And he cited Jonathan Rauch as a
proponent of the idea that marriage is a commitment marked by
emotional union.
Alito
explained that the Constitution is silent on which of these
substantive visions of marriage is correct. The Court, he explained,
should defer to democratic debate.
Indeed,
whatever any individual American thinks about marriage, the courts
shouldn’t redefine it. Marriage policy should be worked out through
the democratic process, not dictated by unelected judges. The courts
should uphold the freedom of the American people and their elected
representatives to make marriage policy.
Last
summer, when the Supreme Court struck down DOMA, Chief Justice John
Roberts emphasized the limits of the majority’s opinion. He made
clear that neither the holding nor its logic required redefining
state marriage laws. The states remain free to define marriage as the
union of one man and one woman.
If
marriage ends up back at the Supreme Court again next year, the Court
will be less likely to usurp the authority of citizens if it is
obvious that citizens are engaged in this democratic debate and care
about the future of marriage.
We
must rally in support of our constitutional authority to pass laws
defining marriage. We must make clear that court-imposed same-sex
marriage via a Roe v. Wade-style decision will not settle the
marriage debate any better than it has settled the abortion debate.
We
must insist, with Judge Kelly, that judges “should resist the
temptation to become philosopher-kings, imposing [their] views under
the guise of constitutional interpretation of the Fourteenth
Amendment.”
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