Marriage, the Court and where we go from here

Ryan T. Anderson William E. Simon Fellow, The Heritage Foundation
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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.

Where do we go from here?

The defense of marriage matters now more than ever. It won’t be long before new challengers come before the Court. And the Court will be less likely to issue an activist decision, less likely to usurp the authority of citizens, if it is clear that citizens are engaged in this democratic debate and care about the future of marriage.

There is a role to play for everyone. First and foremost, we need to start living out the truth about marriage. Long before there was a debate about same-sex anything, heterosexuals bought into a liberal ideology about sexuality that makes a mess of marriage — with cohabitation, no-fault divorce, extra-marital sex, non-marital childbearing, massive pornography consumption and the hook-up culture all contributing to the breakdown of our marriage culture.

So the first thing to do is for husbands and wives to be faithful to one another through thick and thin, till death do them part. Mothers and fathers must take their obligations to their children seriously. The unmarried must prepare now for their future marital lives, so they can live out the vows they will make.

At one point in American life, virtually every child was given the great gift of being raised to adulthood by the man and the woman — the mom and the dad — who gave them life. Today, that number is under 50 percent in many communities. Same-sex marriage didn’t cause this, but it does nothing to help it, and will only make things worse.

After all, redefining marriage to make it simply about emotional companionship sends the signal that moms and dads are interchangeable. It directly undercuts the rational foundations for the norms of marriage: permanence, exclusivity and monogamy. It places the principle into law that if justice requires redefining marriage to include the same-sex couple, so too it will demand recognizing the “throuple” and quartet.

Two competing views

In his dissent from the ruling on DOMA, Justice Samuel Alito perfectly frames the debate going forward as a contest between two visions of marriage — what he calls the “conjugal” and “consent-based” views.

Alito cites the book I co-authored with Princeton’s Sherif Girgis and Robert George as an example of the conjugal view of marriage: a “comprehensive, exclusive, permanent union that is intrinsically ordered to producing children.” He cites Jonathan Rauch as a proponent of the idea that marriage is a certain commitment marked by emotional union. And he explains that the Constitution is silent on which of these substantive, morally controversial visions of marriage is correct. The Court, he says, should decline to decide; it should defer to democratic debate.

So the second thing to do is to redouble our efforts at explaining what marriage is, why marriage matters and what the consequences are of redefining marriage. The left wants to insist that the redefinition of marriage is “inevitable.”

The only way to guarantee a political loss, however, is to sit idly by. We should frame our message, strengthen coalitions, devise strategies and bear witness. We must develop and multiply our artistic, pastoral and reasoned defenses of the conjugal view as the truth about marriage, and to make ever plainer our policy reasons for enacting it.

In this struggle to preserve marriage, as in the pro-life cause, we need to take a long view. Such a view doesn’t look to immediate wins or losses, but decades-long paradigm shifts that reshape how Americans think about marriage.

Ryan T. Anderson is the William E. Simon Fellow at The Heritage Foundation and editor of Public Discourse. He is co-author of What Is Marriage? Man and Woman: A Defense.