When the Supreme Court constitutionally redefines marriage to include same-sex couples, it is not a typical or even activist exercise in legal interpretation. It is something more fundamentally disturbing – a culmination of a long, multi-faceted, effort by the judiciary to force states into unconstitutional behavior which can then be struck-down and replaced with its own design. It was a trap. And its walls closed in at several angles.
The Court used a rigged analysis to decide the Obergefell v. Hodges marriage case. When scrutinizing laws that treat people differently along lines other than race or sex, the Constitution’s Equal Protection clause only requires that a law be rationally related to a legitimate government interest. An easy test – except that the Court has special concern for cases involving homosexuality and “fundamental rights,” and searches for signs of animus in legislators’ intent.
An unspoken trick here, however, was that the Court destroyed the rationality of States’ non-hostile marriage policies decades ago. As the Circuit Court in Obergefell explained, marriage was instituted in governments to economically and socially secure the condition and progeny of humanity. Marriage was thus inherently heterosexual by nature, and not by animus. States might have appealed to this as their legitimate reason to maintain traditional marriage. They were set-up for failure, however, because the Court at the height of the sexual revolution mandated that States legally disconnect marriage, sex, and procreation from each other in a pair of contraception-centered cases, Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). Now States’ policies must reflect a world where individual sentiment, not stable procreation, is the purpose of marriage. Consequently, keeping heterosexuality in marriage’s definition erroneously reeks of animus. A reflective Court, rather than claiming against all history that the purpose of marriage is not procreation-based, would have admitted that it, not State legislators, caused this.
States willing to embrace no-fault divorce in that same era undoubtedly contributed much to the erosion of the original legislative reason behind marriage.
A second problem was that judicial activism itself compelled States to pass laws defining marriage as between one man and one woman, which were then targeted as unconstitutionally irrational and antagonistic. In the past, State law often did not specify that marriage was between a man and a woman because the heterosexuality of marriage inhered in its definition (distinct from anti-miscegenation laws that put explicit restrictions on marriage). Anyone who would sue to redefine marriage to include homosexual couples would have been out of luck in many jurisdictions because there was not a State statute for them to fight over. They might as well have sued dictionary publishers.
Then States got scared. Rising homosexual activism convinced them that courts might amend English itself, as the high court in Massachusetts expressly did in 2003. Before and after that seminal case, most other States preemptively passed laws and amendments to define marriage as between one man and one woman – not out of animus but to passively stand pat with the millennia. But the move backfired because the States, thinking they had erected buffers to ward off judicial overreach, had inadvertently created easier targets for plaintiffs’ lawyers to aim at and call hostile “bans.” In effect, lawyers’ and judges’ promoting same-sex marriage forced States to shoot themselves in the foot.
The third wall was the fabrication of a perceived multi-state consensus. When discerning constitutional rights, the justices learned from backlash to Roe v. Wade and now at least consider the consensus among States. The headlines in February that Alabama had become the thirty-seventh State to “allow” same-sex marriage gave the false impression that such consensus existed. Of the 37 states to create same-sex marriage before Obergefell, however, 26 were forced by courts without democratic legislation or referendum. Lower courts engineered an artificial wave of State agreement where there was none, fabricating support for the Supreme Court and buttressing the trap.
Yet another angle involved the Supreme Court’s letting those lower rulings stand longer than necessary. Last October, it declined to review cases from three Circuit Courts, opening same-sex marriage in eleven states. Because it would be harder to rescind a new right than to refrain from creating it, and because discriminating based on whether a couple was “married” before or after a certain date is untenable, this indecision represented another wall to predestine the marriage outcome without exercising jurisprudence.
Finally, the judiciary allied with attorneys general who abdicated their duty to the rule of law. By refusing or being suspiciously unprepared to defend marriage, several prevented their States’ democratically-enacted laws from having a day in court or punted to less capable counsel. With weaker or no argument by its sworn advocates, traditional marriage was hindered in surmounting its judicially-imposed trap.
Was there ever a way out of this box? Perhaps, but not on the playing field set-up by same-sex marriage proponents. As Chief Justice John Roberts observed at Obergefell’s argument, LGBT advocates were “not seeking to join the institution, [they were] seeking to change what the institution is.” This logic would have removed the matter from disingenuous Equal Protection framing and flipped the discussion aright.
But the progressive majority had other plans and, despite its lip service to the special status of two-person marriages and First Amendment rights, it won’t stop here.
Robert Vega is a staffer in the U.S. House of Representatives and a graduate of Harvard Law School who has contributed to constitutional litigation. The views expressed are strictly his own.