Family Leader

By Richard G. Wilkins

Four months ago, in Lawrence v. Texas, the Supreme Court by a 6-3 vote announced a constitutional right to homosexual sodomy.  Government cannot “demean” one category of consensual sexual relations, the Court said, because all sexual relationships are equal.  Justice Scalia worried that this reasoning “leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.”

Those shaky grounds have now begun to crumble.  All state marital laws may have tumbled.

In Goodridge v. Department of Public Health, the Supreme Judicial Court of Massachusetts, relying upon the reasoning of Lawrence by a four to three vote, announced that the “everyday meaning of marriage” is “arbitrary and capricious.” 

For those who don’t have a law degree: marriage has just been declared irrational. 

Goodridge nominally construes the Massachusetts Constitution.  The decision does not, at least in form, establish the unconstitutionality of marriage within every state of the Union.  But the overwhelming majority of the authority cited in Goodridge consists of Supreme Court cases construing the federal Constitution.  The Massachusetts judges, moreover, may well have read and applied that precedent as the Supreme Court intended.

If so, the meaning of marriage in America has changed dramatically.  All state and federal legislation – such as the federal Defense of Marriage Act – which define marriage as a union between a man and a woman will soon fall before a federal constitutional command.  In short, unless Goodridge has improperly cited, quoted and interpreted the most recent decisions of the Supreme Court, marriage is irrational in Massachusetts.

And in every other state as well.

 irrational adj.

1. Not endowed with reason.
2. Affected by loss of usual or normal mental clarity; incoherent, as from shock.
3. Marked by a lack of accord with reason or sound judgment.

Apparently society has suffered a collective “loss of usual or normal mental clarity” for centuries.  How unreasonable to assume that marriage can rationally be founded upon the union of a man and a woman for the purpose (among others) of bearing and rearing children.  Such reflexive and stereotypical thinking is “not endowed with reason,” is “incoherent,” reflects societal “shock” and is “marked by a lack of . . . sound judgment.”  Thankfully, we have Supreme Court Justices, both state and federal, to save us from ourselves.

But who will save us from them?

The opinions in Lawrence and Goodridge raise many questions.  Let’s look at two, and consider them in order.   First, is marriage rational?  Second, who should answer the first question?

Goodridge concludes that Massachusetts’ limitation of marriage licenses to unions between a man and a woman does not “bear a real and substantial relation” to any cognizable public interest, nor does the refusal to license homosexual unions “serve a legitimate public purpose.”  Surprising conclusions indeed. 

There are, of course, numerous and various forms of sexual relationships.  These various relationships unquestionably have unique value intrinsic to the sexual partners involved.  Marriage, however, has always been about one sexual relationship – the sexual union of a man and a woman.  The intrinsic value of this relationship, moreover, extends beyond the partners to society as a whole.  Indeed, the marital contract has always had three parties: a man, a woman and the state. 

Because of the marital contract’s importance to the state, the marital union has enjoyed an honored social role for centuries.  The reasons are obvious and until quite recently unquestioned: marriage provides the sanctioned and preferred social context for the bearing of children and their rearing and education.  Marriage, in a very real sense, is the basic engine for perpetuating the values and ideals that make stable societies possible.

The bearing, rearing and acculturation of children are social interests of surpassing importance. Procreation requires a coupling between a man and a woman.  Here, if not in constitutional law, not all sexual relationships are equal.  Moreover, the common experience of mankind – documented by a growing mountain of research – demonstrates that the best environment for the rearing and training of a child is within a stable marriage between the child’s biological father and mother.  These simple facts, as true today as they were thousands of years ago, provide more than ample grounds for the specialized treatment – and social benefits – conferred upon marital unions.

Goodridge, however, declares that – henceforth – lawmakers may no longer base public policy on “providing a ‘favorable setting for procreation'” or even on “ensuring the optimal setting for child rearing.”  Goodridge acknowledges that homosexual relationships are sterile; indeed, fertility is “the one unbridgeable difference between same-sex and opposite-sex couples.”  Nevertheless, the constitutional logic launched by Lawrence – i.e., that all consensual adult sexual relationships are equal – cannot be limited by simple biology. 

The state may not link marriage and procreation, says Goodridge, because such linkage “confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently . . . inferior to opposite-sex relationships.”  The government, in short, cannot acknowledge that children are possible only through the union of a man and a woman because that very acknowledgement might suggest that heterosexuality has more social utility than homosexuality.  A homosexual “marriage” will never produce a child.  Henceforth, however, we all must officially ignore this fact.

Thus constitutional law becomes implausible.  No amount of logic, no constitutional formulation (no matter how stunning), and no new expansion in civil rights can possibly span the “unbridgeable difference” between a marital union and homosexual relationships.  One need not believe (contrary to the Goodridge court’s assertion) that homosexual relationships are “inherently unstable” or “inferior” to marital relationships to conclude that (however “worthy of respect”) a homosexual relationship differs – quite significantly – from a union between a man and a woman. Biology, not destructive stereotypes, has decreed that children spring from one union and not the other. 

The “everyday meaning of marriage,” in sum, is irrational only to the extent that basic biology is irrelevant.

This raises the second question.  Who should decide whether (and to what extent) biology is relevant or irrelevant to the meaning and status of marriage?

It is easy to forget, nowadays, that neither the Massachusetts nor the United States Constitutions establish state and federal judges as the ultimate arbiters of all divisive social controversies.  Lawrence, with language more suited to an epic poem than a discussion of the federal due process clause, asserted that the Constitution endows the United States Supreme Court with a special mission to protect a litigant’s “own concept of existence, of meaning, of the universe, and of the mystery of human life.”  Following Goodridge’s use of this phrase to restructure marriage, one wonders what constitutional limits on democratic decision-making the universe will demand next.

Although not evidenced by the self-confident tone which pervades the opinions in Lawrence and Goodridge, the due process and equal protection clauses of the federal Constitution were not written to insure victory for the theories of social justice currently preferred by the 6-3 or 4-3 majorities of state and federal courts.  Neither clause expresses any discernible judgment regarding the relative values of heterosexual and homosexual conduct.  Neither clause sets priorities for the intricate social roles of marriage.  The drafters of the Constitution wisely foresaw that the people of America could and would disagree on these and many other issues.  The Constitution, furthermore, provides a mechanism for the resolution of these and other divisive social controversies.

That mechanism is not a courtroom.

As Justice Oliver Wendell Holmes reminded the Supreme Court in 1905 – during another period when the learned Justices were fond of invoking their own notions of liberty to set aside the people’s political choices – the Constitution “does not enact” any view of social policy.  In 1905, the Justices favored economic libertarianism.  Now they favor social libertarianism.  The Constitution legitimates neither brand of judicial activism.

If government action encroaches upon core constitutional values (as contained in clear constitutional text construed in light of actual American practice, experience and tradition) the judiciary must act.  But the Founders intended the judicial role to be exceptional and rarely invoked.  Alexander Hamilton, writing in The Federalist Papers, proclaimed the judiciary the “least dangerous branch” because it does not create policy but merely exercises “judgment.”  The really difficult questions, Hamilton and the other Founders thought, would be left to the people.

Modern social activists (and too many judges) have either forgotten or chosen to ignore that most governmental decisions are not controlled (and can’t be controlled) by the presciently precise language of the Constitution.  If the “correct” answers to pressing questions are fairly debatable, those questions must be – indeed, can only be – resolved by legislative action.

This is particularly true with moral controversies. 

And morality is the central question when it comes to marriage.  Fundamentally altering the meaning of history’s most basic social institution will have serious consequences that no one can yet fully appreciate.  We are being asked to alter the very moral foundation of civilization.

This summer, when the Supreme Court revised all norms related to homosexuality, and this week, when the Massachusetts court redefined marriage, the Justices claimed that “liberty” – not a “moral code” – was at issue.  But, as in Justice Holmes’ day, this assertion is nonsense.

Lawyers, law professors, and judges may prefer to speak of “liberty” rather than “morality.” But no legal rhetoric can obscure the reality that, when they redefine sexual norms and recast social institutions, the legal elites are doing more than expounding “liberty.”  They are substituting one moral regime for another.

Thus, the all-too-common contention that ‘government must not regulate morality’ is utter nonsense – unless the goal is to eliminate all government.  Governmental decisions, from welfare to clean air to sexual conduct to speed limits, always involve competing moral values.  Who should decide who wins and loses in contests involving fairly debatable moral claims? 

Judges?  In a democracy?

The expanding reach of American constitutional law – as exemplified by decisions such as Lawrence and Goodridge – has rendered the public increasingly oblivious to its role as the primary source of decision-making power under the United States Constitution.   By inventing and enforcing “rights” nowhere evident in the language of the Constitution or the history and traditions of the American people, lawyers, law professors and judges have slowly eroded democratic decision-making, reducing or eliminating the people’s democratic control over an ever-expanding range of fairly debatable moral controversies.  Questions involving the most pressing issues of modern life – from cloning and biomedical research to marriage and children’s rights – are now routinely and definitively answered by judges, not by democratically elected lawmakers.  After Lawrence and Goodridge, which democratic judgments in these and other areas will survive the potentially all-encompassing “meaning of the universe” test?

No one knows.  Because no one knows, a vital question must be confronted.  America drafted a written Constitution in 1789.  Does it still have one now?

On this point, whether Lawrence and Goodridge are “right” or “wrong” is almost beside the point.  The real issue is whether Americans will continue to allow its courts, both state and federal, to continue to usurp the people’s prerogative to decide debatable, divisive, difficult – even unanswerable – questions of social morality.

Proper regard for the political structure established by the United States Constitution demands that Americans, whatever their views, now engage in a vigorous constitutional debate regarding the meaning of marriage in America.  Do the Massachusetts and United States Constitutions provide a right to same-sex marriage?  The people, not slim majorities of seven or nine people dressed in black robes, must answer these questions.

The social, political, moral and ethical values at stake are too important – and too hotly and honestly contested – to be resolved any other way.

This, finally, brings up the important practical question:  What must we do now?  A multi-faceted approach is necessary.  At a minimum we must (a) amend the Constitution to protect marriage and (b) at the same time establish a political regime where the people – not the judges – will be the primary guardians of liberty.  For the upcoming election cycle, the achievement of these two objectives is linked.

(a) First, a few words about the amendment.  The Supreme Court, as you have heard repeatedly at this conference, is out of control.  It has happened before – from 1890 to 1936, the period when Justice Holmes inveighed against judicial activism, the Court found violations of economic liberty in every nook and cranny of American society.  That period ended only when President Roosevelt famously went on the radio and threatened to “pack the Court” by appointing seven new members who would agree with the views of the American people.  Because Roosevelt had the political power to carry through with this threat, the Court suddenly “got religion” and repented of its judicial arrogance.  Between the winter of 1936 and the spring of 1937, the Court became an entirely new institution.

The lesson here is simple:  When the Court gets out of hand, it must be stared – like any wild beast – back into submission.  Roosevelt did it in 1936.  If, by a miracle, President Bush were delivered a supermajority of the Senate in 2004, he could do the same thing.  Congress sets the size of the Supreme Court.  With secure political backing, President Bush could simply announce that – to get the Court back on track – he will increase the Court’s membership to 15 and appoint 6 new and thoroughly traditionalist jurists to the bench.  The Court, as in 1936, would get the message.

The Marriage Amendment, however, can send an even more potent scare.  The Supreme Court has gotten it seriously wrong before – and on those occasions we have either promptly amended the Constitution (once after fighting a Civil War prompted, in no small part, by the Court’s refusal to enforce a congressional compromise). Serious attempts to amend the Constitution force the Court to face its own political mortality. If history is instructive, once faced by this mortality, the Justices once again start behaving like judges – not petty dictators.

Therefore, ignore the naysayers.  Even if we should NOT succeed with a constitutional amendment, we WILL instruct the Court.  Whether we win or lose, the Justices will learn again the limits of their power.  As with Roosevelt in 1936, they will be forced to face their own mortality.  And unless they become mortal soon, American democracy may erode beyond recovery.

Therefore, whatever the final outcome, by working to amend the Constitution, we will not fail.

(b) This brings me to my second practical point: in seeking to amend the Constitution, we will necessarily be involved in establishing a political regime protective of our liberty and constitutional rights.

The people, not the courts, are the primary fount of decision-making power in this country; the people not the courts are the primary beneficiaries of constitutional governance.  But, the only way these words can become reality rather than aphorisms is to obtain a clear political majority in the senate and the house that is committed to the structure of constitutional liberty erected by the Founders. Without these clear majorities, we cannot at the end of the day protect marriage or any of our liberties.  Without these clear majorities, we will never be able to clean out the current activist judges and replace them with true, classical jurists.

By making marriage the central and decisive factor in the 2004 elections, we can obtain this clear political majority committed to liberty.   During the 2004 election, every candidate for the federal House or Senate must be forced to take a stand on marriage.  Those who do not support marriage cannot be trusted to support constitutional structure.  They should not be elected.  Those who do support marriage will not only enshrine protection of marriage in the Constitution, they will work to eradicate the Constitutional error of judicial dominance and restore governance of America to the American people.

In sum, by making the 2004 election turn on marriage, we can win both of the pressing political crises now facing America: we will save marriage, and install a political regime that will set about restoring a proper regime of political liberty in this great land.

May God grant us the courage, the humility, the strength, and the wisdom to accomplish these surpassingly important tasks.