The ‘Humiliation’ Case For Overturning Marriage Laws Is Bogus

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Some federal judges say that laws defining marriage as male-female are unconstitutional because they “humiliate” children.  But there is no evidence for this. Instead, it is voters who are humiliated by the actions of these judges.

The Supreme Court said in the Windsor case in 2013 that the definition of marriage as opposite-sex in the federal Defense of Marriage Act “humiliates tens of thousands of children now being raised by same-sex couples.” The Court said this definition makes “it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” The Fourth, Seventh, and Tenth Circuits quoted this humiliation thesis in recent decisions striking marriage definition laws.

The Seventh Circuit pushed the humiliation thesis with this scenario: “Suppose such a child … reports to his parents that all his classmates have a mom and a dad, while he has two moms or two dads. … If a child’s same-sex parents are married, however … the child can feel secure in being the child of a married couple.”

In effect, the court said that for the same-sex adults in a child’s home to be married is consolation for the child not being able to say that he or she has both a mother and a father. Just as the Supreme Court cited no support for its humiliation thesis in Windsor, the Seventh Circuit also offered none.

In his dissent to the Tenth Circuit marriage decision, Judge Paul Kelly questioned the Windsor humiliation thesis: “The Court’s conclusion that children raised by same-gender couples are somehow stigmatized … seems overwrought when one considers that 40.7 percent of children are now born out of wedlock.” Kelly added: “We should be hesitant to suggest stigma where substantial numbers of children are raised in such environments. Moreover, it is pure speculation that every two-parent household, regardless of gender, desires marriage.”

Indeed, many modern opposite-sex celebrity couples openly cohabit and have children outside of wedlock, without any apparent stigma or humiliation. It may be that many children of unmarried couples would be more embarrassed and humiliated if their parents were married.

In effect, with this unsupported humiliation thesis, courts have inserted themselves into the culture as “National Psychologist” — purporting, without evidence, to divine the psychological effect of the traditional opposite-sex definition of marriage on children living in households with same-sex adults. What is even more embarrassing is that this amateur psychology passes for constitutional law.

But what about the humiliation of voters? Millions of voters stand behind every statute adopted by Congress and state legislatures preserving the opposite-sex definition of marriage. Putting those aside for the moment, consider only the states that have adopted constitutional amendments by popular referenda. Since 1998, over 41 million citizens in more than 30 states have voted for constitutional amendments to define marriage as opposite-sex in nature, with majorities in some states exceeding 80 percent.

These millions of voters have now been told by a number of federal courts that their sincere efforts to make democracy work and the countless hours they have invested in expressing their views are worthless. The courts have also said that these voters are irrational, i.e., they believe in the historical opposite-sex definition of marriage without any rational basis. Further, some courts have announced that voters who support the male-female definition are infected with “animus” or hatred.

Here’s a question for the courts: How much public opinion do courts think they can ignore and ridicule without destroying the legitimacy of the judiciary and even destabilizing the democratic basis of this republic? Never before in our history have the views of so many citizens been expressed in public referenda and then almost immediately overruled by a small number of judges — acting under the pretense of a right not found anywhere in the Constitution.

Our president and other leaders send our young soldiers to fight in distant lands in order, they say, to secure the rights of other people to “self-determination.” But in the United States apparently self-determination does not count for much. When the United States is finally swept into the dust bin of history, one of the primary reasons will likely be judicial usurpation of power from the political branches and disregard for the right of self-determination.

Some say the “arc of history” bends toward same-sex marriage and polyamory. But, after only 10 years of experience in redefining marriage as genderless (against 6,000 years of recorded history under the opposite-sex definition), we do not know that. History reveals many now-disfavored practices that were at one time thought inevitable and on the “right side of history,” including Marxism and racial eugenics. A much better prediction is that the arc of history bends toward self-determination, without interference by an autocratic judiciary.

George M. Weaver​ is a former assistant attorney general for the state of Georgia.