- The Constitution is silent on which visions of marriage is “correct,” so We the People have constitutional authority to make marriage policy, not the courts
The U.S. Supreme Court began hearing arguments for and against state laws that define marriage as only a union between a man and a woman on Tuesday, providing the first public glimpse into what position they intend to take on the issue.
As reported by Fox News and other media, the nine justices will attempt to rule whether states have the power to make such determinations, or whether the Constitution already gives gays and lesbians the “right” to marry.
In about two-and-a-half hours, justices heard extended oral arguments, “which also explore whether states that do not permit same-sex marriage must nonetheless recognize such unions from elsewhere,” Fox News reported. Currently, same-sex couples are permitted to marry in 36 states and the District of Columbia.
As usual, most eyes are on Justice Anthony Kennedy, the court’s perennial “swing” vote. What’s more, he has written the court’s three prior gay rights decisions, including one case from a couple years ago.
States are likely to be charged with reframing the debate if they hope to be successful, say some legal analysts.
“This case is not about the best marriage definition. It is about the fundamental question regarding how our democracy resolves such debates about social policy: Who decides, the people of each state or the federal judiciary?” John Bursch, representing Michigan, wrote in his main brief to the court.
That is absolutely spot-on and, really, in our view, the crux of the issue.
In the vast majority of states – even those that currently permit gays and lesbians to marry – gay marriage initiatives failed to garner majorities when put to the people for a vote. Only through aggressive federal court action in which favored judges were targeted by gay rights activists and legal organizations were those votes of the people overturned.
Further, as noted by Dr. Ryan T. Anderson, the William E. Simon senior research fellow in American Principles and Public Policy at The Heritage Foundation, there is nothing in the Constitution that a) requires states to define marriage or b) thus redefine it. “Whatever people think about marriage as a policy matter, everyone should be able to recognize the Constitution does not settle this question,” Anderson writes.
He also notes that the issue is not which version of marriage is best, but only whether it is permitted by the Constitution and whether states are required by the Constitution to recognize one version over another, or none at all.
“Those suing to overturn male-female marriage laws thus have to prove that the man–woman marriage policy that has existed in the United States throughout our entire history – is prohibited by the Constitution. They cannot successfully so argue,” he says.
He also points out that, a few years ago, Supreme Court Justice Samuel Alito observed that there are two visions of what marriage is and has to offer: One view of marriage sees it as primarily about consenting adult romance and care-giving. Another view of marriage sees it as a union of man and woman—husband and wife—so that children would have moms and dads.
“Our Constitution is silent on which of these visions is correct, so We the People have constitutional authority to make marriage policy,” writes Anderson. That would fall under the Tenth Amendment most likely.
He goes onto observe that the “equal protection under the law” argument is not strong enough by itself to overturn states’ versions of man-woman marriage.
“To strike down marriage laws, the Court would need to say that the vision of marriage that our law has long applied equally is just wrong: that the Constitution requires a different vision entirely. But the Constitution does not require a new vision of marriage,” he says.
Finally, the comparison to the striking down of laws that once banned interracial marriage were correct because race does not have anything to do with marriage and “there were no reasonable arguments ever suggesting it did.”
But there is another valid argument that should give the nation’s highest court pause in siding with pro-gay marriage forces: The damage such a ruling could eventually do to the First Amendment’s free speech protections.
Other arguments by the states and more than five-dozen briefs by their defenders warn the justices of harms that could result “if you remove the man-woman definition and replace it with the genderless any-two-persons definition,” said Gene Schaerr, a Washington lawyer.
That, says Dawn Stefanowicz, is what happened in Canada, her home country, in 2005, when America’s northern neighbor redefined marriage as “genderless;” since then, the country has slide down a slope of anti-free speech regulation in which anyone who disagrees with the notion of same-sex marriage, or that marriage partners are “genderless,” face harsh penalties and major fines.
“Americans need to understand that the endgame of the LGBT rights movement involves centralized state power—and the end of First Amendment freedoms,” she writes in a piece for The Witherspoon Institute.
Stefanowicz, one of six adult children of gay parents who recently filed amicus briefs in the case currently before our Supreme Court, “asking the Court to respect the authority of citizens to keep the original definition of marriage: a union between one man and one woman to the exclusion of all others, so that children may know and may be raised by their biological parents.”
Moreover, she notes:
In Canada, freedoms of speech, press, religion, and association have suffered greatly due to government pressure. The debate over same-sex marriage that is taking place in the United States could not legally exist in Canada today. Because of legal restrictions on speech, if you say or write anything considered “homophobic” (including, by definition, anything questioning same-sex marriage), you could face discipline, termination of employment, or prosecution by the government.
Obviously, then, there is more at stake than the “fairness” of permitting two people of the same sex to marry. But the bottom line, besides the likelihood that “gay rights” speech Nazis in the U.S. would love to prosecute and fine anyone who doesn’t share their vision of what a family should look like, is the constitutional issue that the nation’s founding document is simply not clear on: Defining marriage. And if the Constitution is unclear, then by default, per the 10th Amendment, it’s out of Washington’s – and the Supreme Court’s – hands.
Or at least, it should be.
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