Judicial Activism Run Amok One Year After Windsor

Brian Brown President, National Organization for Marriage
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One year ago, the United States Supreme Court issued their 5-4 decision in Windsor v United States in which the court invalidated a part of the federal Defense of Marriage Act (DOMA) that defined marriage under federal law as the union of one man and one woman. The court’s majority opinion contained two main themes – the obligation of the federal government to respect the rights of states in their historic role of regulating marriage, and the failure of the federal government to respect the dignity of gays and lesbians.

The spate of poorly reasoned decisions in the lower federal courts since the Windsor decision has led many gay activists to conclude they are on a path to certain victory before the U.S. Supreme Court when one of these cases are heard. Since Justice Anthony Kennedy – the key swing vote on the divided court — authored the majority opinion in Windsor, and several other “pro-gay” opinions, it is taken as an article of faith that he will side with gay marriage advocates when the court ultimately rules.

We believe they are wrong.

States have the right to define marriage in ways that reflect their considered judgment about what constitutes a marriage. While it may be true that a majority of the court is sympathetic to gays and lesbians being subject to societal disapproval and “stigma,” it doesn’t mean they are going to “constitutionalize” gay marriage, invalidating the decisions of state legislatures and over 50 million American voters in 31 states to preserve marriage as the union of one man and one woman.

It is not irrational for states to want to preserve marriage. Federal judges routinely declare that defining marriage as the union of one man and one woman serves “no rational purpose.” This is nothing more than judicial arrogance and hubris. Only unions between men and women have the capacity to produce children; it is in the best interest of children to have institutions encouraging men and women to be mothers and fathers to their children. Moreover, it is clearly rational for a state to wait and see how this experiment of same-sex marriage plays itself out elsewhere before considering redefining marriage in their own state. Plenty of negative implications have already risen to the surface, such as the impact on religious liberty, to give states pause.

The court will be inclined to allow the democratic system to work, trusting elected officials and voters to make informed decisions over time. When the court took the issue of abortion away from the states in 1973, they launched a forty-plus year culture war. Many justices have bemoaned that outcome, observing that it would have been better to allow the issue to be resolved through the democratic process. The same should be true of same-sex marriage. Invalidating marriage laws across the country will usher in an immense societal reaction and millions of Americans will consider such a ruling to be illegitimate.

If the court had wanted to impose same-sex marriage, they could have already begun the process. For example in Utah, the court issued, unanimously, an emergency stay of the lower courts’ decisions to overturn traditional marriage, believing that the state has a likelihood of prevailing on the merits. Had the court wanted to begin to condition the country to a same-sex marriage regime, they could have refused to act.

Justice Kennedy is a staunch defender of the initiative and referendum process utilized to enact the 31 marriage amendments adopted by voters. His opinion in the affirmative action case in Michigan is an example of his strongly-held views. Some commentators have noted that one could simply substitute the words “traditional marriage” for “affirmative action” to get an idea how he will rule when the marriage issue comes before him. Kennedy’s majority opinion upheld a voter-approved limit on affirmative action in Michigan.

Marriage is intrinsically the union of one man and one woman, and this has benefitted our nation immensely. We remain hopeful and confident that the U.S. Supreme Court will reaffirm this reality and find that it is well within the right of states to define marriage in the traditional way. We look forward to the Court taking the soonest possible opportunity to put an end to judicial activism on the marriage issue, and upholding the constitutionality of traditional marriage.

Brian Brown is president of the National Organization for Marriage.