Yesterday, the U.S. Supreme Court rejected the petitions of Utah and four other states to review lower court decisions which had ruled, implausibly, that the 14thAmendment required every state to redefine marriage to include same-sex couples.
Children are entitled to a married mother and father. Since 1998, the voters of 31 states have enacted amendments to their state constitutions to protect this entitlement by preserving marriage as the union of a husband and wife. In 2008, after California joined those states, legal activists decided to use the federal court system to overturn the amendments. They were successful in getting California’s law changed but only because the state’s executive officials refused to defend the amendment.
In the summer of 2013, after the Supreme Court struck down the federal Defense of Marriage Act, a litigation frenzy began which eventually resulted in lawsuit challenging the marriage laws of every state that had not already redefined marriage by court order or legislation. They were successful in four states where attorneys general did their part to facilitate an adverse court decision.
The majority of the states, however, actually defended the laws approved by their people. Utah was in some ways the leader of these states. Its law was the first of the pack to be struck down by a federal judge (just before Christmas in 2013) and the first to petition the Supreme Court for review.
It was widely believed the Court would accept Utah’s petitions and perhaps others so they could settle the legal dispute they themselves had created by seeming to endorse both the idea that states should be free to enact their own marriage laws and the position that retaining the virtually universal understanding of marriage might be unconstitutional.
That turned out not to be true when the Supreme Court decided yesterday in a reckless decision not to correct the lower courts which had taken on themselves the power to create a new meaning of marriage that they felt should be binding on the states. The decision was reckless because it invites lower federal courts to stretch the law to accomplish policy ends that people of the states would not endorse when nothing in the Constitution actually requires such a result.
It’s important to note that the decision the Supreme Court’s inaction allowed to stand are radical both in reasoning and result. The Tenth and Fourth Circuits said that the Constitution protected an essentially unfettered “right” to requiring the states to endorse individuals’ understandings of marriage. The Seventh Circuit decision, riddled with unsupported empirical statements, and an entirely novel legal analysis held the people of Indiana and Wisconsin had acted irrationally and out or hatred in retaining marriage laws. The courts in these circuits are now free to adopt these broad theories to any new case to come before them.
Those who care about preserving the unique and uniquely beneficial contributions of marriage as the union of a man and woman face a challenging future. The Court’s indecision still allows the five remaining federal Circuit courts to rule on the issue. At least one of these should have the integrity to push back against the idea that the Constitution licenses federal micromanaging of marriage laws.
If that happens, the Supreme Court could be forced to hear the issue to resolve the split between the different regions. Perhaps the majority of judges would rethink their willingness to allow a federal marriage policy that interferes with the self-determination of people in the states. Even then, much damage would be done as eleven states will now presumably have to treat marriage as the association of any two adults as a result of yesterday’s action.
So, the harder and more important work we must take on is to change the culture regarding marriage, like the pro-life movement has done with the protection of unborn children, so that legal changes to restore the child-centered understanding of marriage become possible again.
In taking on that task, we will have the powerful ally of reality. Men and women are not interchangeable, mothers and fathers are not disposable parts of a child’s life, children deserve a mother and father committed to each other and to the child their union alone may produce.
