An imperial judiciary won’t leave same-sex marriage to the states.
[This article was co-authored by David L. Tubbs and Robert P. George.]
When President George W. Bush declared his support for a federal constitutional amendment defining marriage as the union of one man and one woman, his most vitriolic critics, such as Senator Edward Kennedy, accused him of playing a divisive, mean-spirited political game. The New York Times and Washington Post, supporters of the idea of same-sex marriage, raised a more sophisticated objection to the amendment: it betrays, they claim, the venerable principle of American federalism that respects states’ relative autonomy in setting marriage policy. Interestingly, some prominent conservative opponents of same-sex “marriage,” including California congressman Christopher Cox, were also skeptical about the amendment on federalism grounds. State voters could and would prevent the imposition of same-sex marriage, these critics argued. There was no need to nationalize the issue.
Despite its widespread appeal, the states’ rights solution won’t work. Without a federal marriage amendment, we’re going to wind up with same-sex marriage in all 50 states. And here’s why.
The federalism proposed by the liberal opponents of a constitutional amendment is in fact a sham. It is a contrivance for permitting liberal state judges, abetted by sympathetic justices on the Supreme Court of the United States, to foist same-sex marriage upon the whole nation.
In the traditional or classic understanding of American federalism—expressed in the Federalist Papers and reflected in the design of the Constitution—democratically elected state legislators represent the citizens who elect them. Those legislators enjoy wide authority to make laws relating to marriage and family life, and promoting public health, safety, and morals. Because the U.S. Constitution vests state lawmakers with such wide-ranging powers in these areas, on the classic view, courts must defer to state legislatures. Such deference is no mere courtesy or convention, but a constitutional duty. A judge may invalidate state legislation relating to marriage and family life or on public health, safety, and morals only if it conflicts with norms fairly derived from the text, logic, structure, or original understanding of the state or the federal constitution. As private citizens, judges may object to a law or policy on prudential or moral grounds, but as judges, they must distinguish the desirability—even the justice—of a policy from its constitutionality. Virtually all judges still pay at least lip service to this obligation.
Even so, state judges today ignore or circumvent it in practice with alarming frequency, so that the kind of federalism we increasingly have is not one of state legislatures but of state judiciaries. For this, the late U.S. Supreme Court justice William Brennan bears considerable blame. In an influential 1977 article in the Harvard Law Review, Brennan noted that state constitutions, like the U.S. Constitution, include provisions that convey important legal norms and principles in abstract-sounding language. Such provisions sometimes admit of multiple interpretations, especially when jurists ignore the relevant history and precedents. Brennan urged state appellate judges to interpret the state constitutional provisions expansively to secure individual rights, just as the Supreme Court had done under Chief Justice Earl Warren.
It was advice that many state-level judges proved eager to heed. In the years since Brennan wrote, state supreme courts—among them California’s, Kentucky’s, and Georgia’s—have coined new rights or enlarged the scope of rights promulgated by the Warren and Burger Courts. Nowhere have the state courts run amok more wildly, however, than on same sex-marriage, an idea opposed by a sizable majority of Americans. In Hawaii, Alaska, Vermont, and now Massachusetts, judges have sought to redefine marriage, against the voters’ will.
Can’t states just deal with this judicial arrogance themselves, by flexing their federalist muscles? One prominent advocate of redefining marriage, Andrew Sullivan, says it’s already happening (to his regret). He cites the following facts: 38 states have passed legislative bans on same-sex marriage; four states have already amended their constitutions to the same end (with an overwhelming 70 percent of Missouri voters endorsing a state constitutional ban this past August); and roughly a dozen states have scheduled referenda to consider similar amendments. It’s just Republican scare tactics to say that any state that doesn’t want same-sex marriage will have to accept it, claims Sullivan. Representative Cox also cites these numbers in an effort to convince the American public that the proposed amendment is unnecessary.
Regrettably, these state-level political efforts ultimately won’t stop the march to redefine marriage. The reason: the Supreme Court is almost certain to nationalize the issue and make same-sex-marriage legal from coast to coast. Everybody knows about the Court’s judicial activism in recent decades. That activism has reached its highest pitch in promoting the agenda of the sexual revolution. Same-sex marriage is merely the latest goal in that revolution.
As the self-appointed enforcer of elite opinion in sexual matters, the Court will have several means at its disposal to impose its views. First, if a state irrevocably establishes same-sex marriage, homosexual couples from states that don’t permit such unions will flock there to obtain marriage licenses, and then sue to have them recognized by their home states. To resolve the conflict, the Supreme Court might apply Article IV, Section 1 of the Constitution, setting forth that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” The Court could read that clause to override the authority of the states and to invalidate the federal Defense of Marriage Act (1996)—even though that legislation passed with huge congressional majorities (342 to 67 in the House and 84 to 15 in the Senate).
Asecond possible route to same-sex marriage follows the line of privacy decisions that began with Griswold v. Connecticut in 1965, striking down a Connecticut anti-contraception statute. The statute, it’s worth recalling, was actually an example of federalism at work. Despite the efforts of zealous pro-contraception lobbyists, the Connecticut legislature chose not to repeal the state’s legal restrictions on birth control pills and devices. Other states had laxer laws, but according to the old federalism, each state could decide for itself what was required to uphold the public interest in a decent local moral ecology. In Griswold, the Court said no, every state must permit contraception. The Court nationalized the issue and dictated a uniform policy for the states.
The Court held that the Connecticut law violated an “unenumerated” right to marital privacy. Bizarrely, this right was said to reside in “penumbras formed by emanations” from specific guarantees in the Bill of Rights. The justices knew that this type of quasi-metaphysical claim was unprecedented, and they knew, too, that critics would see it as a mere rationalization for the judicial usurpation of state legislative authority. In powerful dissents, Justices Hugo Black and Potter Stewart accused their colleagues of just such usurpation. Nevertheless, seven justices, determined to strike down a law that they believed was out of line with enlightened opinion about sex, conjured up a new constitutional formula to do so, even as they still pretended to respect traditional norms of constitutional interpretation.
Within a decade, the Supreme Court lost its remaining inhibitions about making policy, especially when it came to sexual and “life-style” matters. Notoriously, the justices transformed the right of “marital privacy” in Griswold into an individual privacy right encompassing both contraception and abortion. Even a liberal legal thinker like Jeffrey Rosen acknowledges that the Court’s abortion decision in Roe v. Wade (1973) was a bridge too far, indefensibly contorting the Constitution to nationalize an issue and take it out of voters’ hands. In the 1992 Casey decision reaffirmingRoe, the Court went even further in its defense of “life-style” freedoms: “At the heart of liberty,” wrote Justices Souter, O’Connor, and Kennedy, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Will a Supreme Court capable of such reasoning—a Court that has refused to accept state differences in laws on contraception or abortion—indefinitely tolerate a federalist approach to marriage policy? It’s extremely unlikely. On the “modern” view, after all, shouldn’t one’s choice of whom to marry be considered a fundamental privacy right like abortion, protected from government meddling? If a man wants to wed a man, or a woman a woman, what right do other people have to deem that unacceptable? Isn’t same-sex marriage a concept of “existence” or “meaning,” and thus, on Casey‘s view, a right?
Perhaps the Court will be reluctant to impose same-sex marriage at the first chance. For various reasons, including the strong public resistance to redefining marriage, it may temporize. But temporizing isn’t principled self-restraint or a forthright acknowledgment of constitutional boundaries. The Court might just bide its time until more of the public becomes receptive to the idea of same-sex “marriage”—something that might occur after a few other state supreme courts mandate it.
Were it not for judicial overreach, we would not be having a national debate on same-sex marriage. That we are having one raises troubling questions about the condition of democratic self-government in America today. For defensive reasons, therefore, we need a federal marriage amendment.
But one can also make a strong positive case for an amendment. After all, the idea of same-sex marriage would have seemed outlandish only a few years ago, and today only a minority, led by an elite of academics, journalists, entertainers, and, of course, state and federal judges and their clerks, gives the idea any credence. The vast majority of Americans holds as self-evident the truth that marriage between a man and a woman is a fundamental institution of a free and democratic society. And in a free and democratic society, they have the right to enshrine that truth in their constitution.