“The Supreme Court’s Challenge: Restore Marriage Decisions to Citizens”
Heritage’s The Foundry:
The Supreme Court announced today that it will hear cases dealing with the definition of marriage during its current term.
The Court will consider challenges to the Defense of Marriage Act, passed by an overwhelming bipartisan majority in Congress and signed by President Clinton, and Proposition 8, California’s constitutional amendment to define marriage as the union of one man and one woman.
After lower courts ruled against these marriage laws, the Supreme Court now has the opportunity to return authority to citizens in answering questions about marriage policy.
Every marriage policy draws lines, leaving out some types of relationships. But equality forbids arbitrary line-drawing. Determining which lines are arbitrary requires us to answer two questions:
- What is marriage?
- Why does it matter for policy?
There are many good reasons why citizens in 41 states have said over and over that marriage is between a man and a woman. Marriage exists to bring a man and a woman together as husband and wife to be father and mother to any children their union produces. And as ample social science has shown, children tend to do best when reared by their mother and father.
Government recognizes marriage because it is an institution that benefits the public good.
Marriage is society’s least restrictive means to ensure the well-being of future citizens. State recognition of marriage protects children by incentivizing adults to commit permanently and exclusively to each other and their children.
While respecting everyone’s liberty, government rightly recognizes, protects, and promotes marriage as the ideal institution for procreative love, childbearing, and childrearing.
In recent decades, marriage has been weakened by a revisionist view that sees marriage as primarily about emotional bonds or legal privileges. In other words, it is more about adults’ desires than children’s needs. Same-sex marriage is the culmination of this revisionism: Emotional intensity would be the only thing left to set marriage apart from other bonds.
Government should not obscure the truth about marriage by accepting that revisionist view. In redefining marriage to include same-sex relationships, government would weaken marital norms, which would further delink childbearing from marriage and hurt spouses and children—especially the most vulnerable. It would deny a mother or father to a child as a matter of policy.
The harms resulting from redefining marriage would force the state to intervene more often in family life and force the state’s welfare to grow even more. Citizens would lose more of their freedom of religion and conscience.
Today’s decision from the Supreme Court comes a week after the district court of Nevada upheld that state’s marriage amendment that defined marriage as the union of a man and a woman.
This is, to put it mildly, an important litmus test: will 9 philosopher kings be swayed by emotional arguments about some inherent right to “marry” someone of the same sex (rather than form some other form of legal partnership which has the same practical effects, but yet keeps the distinction alive between marriage as recognized and promoted by the state for a civil good); or will they be swayed by the argument that the people in each state should to decide for themselves what comes to count as marriage — and who has the right to define the term?
If the court goes with the former argument, it will have decreed that it — and not the people — has the right to define marriage for everyone else, and this will not only serve as an assault on federalism, but an assault on religious liberty, forcing people to accept as legitimate relationships that will essentially deconstruct the historical, current, prevalent (and, in most states, desired) institution of marriage, turning it into something it has never been.
As I’ve said here a million times, there is nothing “homophobic” about taking the position that same-sex unions — being a different thing than marriage as historically defined (and popularly held) — establish a different name for that union.
It being a different thing and all, and so deserving of its own name.
I’ve also said that if a state wishes to vote for same-sex “marriages,” they can certainly do so — but they cannot force other states whose citizens hold an opposite view of what counts as “marriage” to recognize those unions as marriages.
Each time I bring this issue up, I hear the chirping of certain commentators and the sneering from certain trolls — and yet these people never answer the simple question that I’m now going to pose: why is it necessary to call a same-sex union that enjoys many of the same legal protections as a traditional marriage (if not all; these are questions for the states and their citizens) “marriage”?
That is, what is it that those who support same-sex marriage hope to see happen as a result of this redefinition that couldn’t happen should we simply recognize same-sex unions as the new, different things that they are?
And finally, do you find it implausible that by expanding the definition of marriage, additional legal challenges to purely “love” -based relationships will most certainly arise — that if the sexes of the marital participants are decided upon by the Courst as arbitrary, and therefore unconstitutional, surely the number, it can be argued (and currently is being argued), is arbitrary as well?
Having seen the courts at work, I’m very reluctant to give them any linguistic space into which they can force a wedge. That doesn’t mark me as a homophobe. It suggests I’m prudent. You know, conservative.