As the Supreme Court prepares to issue a decision on whether there is a constitutional right to same-sex “marriage,” it is appropriate to look back two years ago to another occasion when the court controversially interjected its voice into the public debate on marriage—its decision in United States v. Windsor.
To be sure, the legal issue was different. But the effect could be the same: ripping the right to democratic participation out of the hands of the voters, disenfranchising and disillusioning them. A ruling against the voters this time around would be even more egregious, for they will have no remedy in the face of a decision throwing aside their own state constitutions except for the arduous prospect of amending the federal Constitution.
In Windsor, the Court examined the constitutionality of a statute which defined marriage for purposes of federal law, and struck down the law on an unclear basis that appeared to rely on due-process and equal-protection grounds, but was also based significantly on federalism.
Voiding the Right to Participatory Government
From that day, when the court said marriage should be left to the states, the states have been doing exactly that: regulating marriage. However, in the two years since Windsor, many lower federal courts have also interjected their own voices and done precisely the opposite of what the Supreme Court instructed in Windsor (unbelievably, in some cases, while relying on Windsor)—taken the issue of marriage out of the hands of the states and away from the power of the voters, by declaring it to be a right under the federal Constitution.
The consequences of this activism have been confusing and disillusioning to the tens of millions of Americans who have voted and tried in good faith to play a part in their democracy, only to be shut down by lone judges.
These Americans believe marriage was not instituted by man, but by God—who has provided instructions for marriage in his revelation and the laws of nature. They believe our Constitution and laws were created on the framework of this and other self-evident truths, and when we depart from them, we depart from the very foundation that makes our constitutional self-government possible. They also realize the Constitution says nothing about same-sex marriage, and to find such a “right” in its text twists our founding document past its breaking point.
The Effects of Overruling Local Jurisdictions
If the Supreme Court reads this new “right” into the Constitution and takes the issue away from the voters, it would be interjecting itself—just as it did in Roe v. Wade—into another nationwide controversy that will be with us for years, perhaps decades. Just last year, the court (in an opinion written by Justice Kennedy) expressed caution about wading into controversial social issues, noting that “[d]eliberative debate on sensitive issues . . . all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Such uncalled-for intervention at this juncture would delegitimize the court and be the hand of its own undoing as a respected public institution.
To be sure, the effects of ruling against the voters on same-sex marriage will be seen in multiple areas affecting freedom and individual liberties, but perhaps the most profound long-term effect is more difficult to see: the damage done to the fabric of our country which occurs when mere mortals tamper with structures ingrained in nature itself and, thus, structures over which they have no authority.
The Supreme Court is the highest court in the land, charged with adjudicating disputes between parties and determining those parties’ rights under the Constitution. However, the Supreme Court lacks the authority to decide the meaning of certain matters outside of its prerogative—matters inherent to humanity, self-evident truths without which civilizations crumble. Marriage is one of these. In tampering with marriage without moral or legal authority, the court not only mishandles the Constitution, but plays with fire and threatens the long-term well-being of our nation.
The court already did so two years ago in Windsor, and we’ve reaped the effects of that decision since then. If it tampers with marriage again (this time, with effects that are much further reaching), it does so at its own peril and that of the country.