Marriage, the Court and where we go from here

What was the least-reported fact about Wednesday’s Supreme Court rulings on marriage? That the Court refused to give Ted Olson and David Boies — the celebrity lawyers who sued to overturn California’s Proposition 8 — what they wanted.

The Court refused to redefine marriage for the entire nation. The Court refused to “discover” a constitutional right to same-sex marriage.

Citizens in all 50 states and their elected representatives remain free to discuss, debate and vote about marriage policy. They retain the right to define marriage in civil law as the union of one man and one woman.

And Americans should continue the debate. In the immediate aftermath of the rulings, Indiana Gov. Mike Pence called on his state to pass a constitutional amendment defining marriage as between a man and a woman.

Marriage matters for children, for civil society and for limited government. Marriage is the institution that unites a man and a woman as husband and wife to be father and mother to any children that their union produces. And that’s why government is in the marriage business. Not because it cares about adult romance, but because it cares about the rights of children.

What did the Court do?

In its ruling on Prop 8, the Supreme Court declared that the citizen group that sponsored that ballot question didn’t have standing to defend the resulting amendment to the state constitution — although millions of Californians voted to pass it. This jurisdictional question was only an issue because Gov. Jerry Brown and the state attorney general decided to not defend a law passed by the people.

This sets a disturbing precedent and distorts the balance of powers among the legislative, executive and judicial branches. It effectively would allow the executive branch to veto duly enacted laws, simply by refusing to defend them against a constitutional challenge.

In its ruling on the federal Defense of Marriage Act (DOMA), the Court declared that the federal government cannot define marriage as the union of a man and a woman for its own policies and laws, but must accept whatever the states decide about redefining marriage.

Here the Court got it wrong. The Court ignored the votes of a large bipartisan majority of members of Congress. Congress should have the power to define the meaning of words in statutes Congress itself has enacted. Just as the states have constitutional authority to make state policy about marriage, so too Congress has constitutional authority to pass a federal statute defining a term for federal programs created by federal law.