Truth Overruled: The Future of Marriage and Religious Liberty

by Ryan T. Anderson

about a child’s right to a mother ...

The only argument of the states that Justice Kennedy addresses—quite briefly—is that redefining marriage will change the institution for everyone in ways that could lead to a decrease in the marriage rate

He first misstates this argument (“an opposite-sex couple [might] choose not to marry simply because same-sex couples may do so”) and then dismisses it as resting on a “counterintuitive view of opposite-sex couple’s decisionmaking [sic] processes regarding marriage and parenthood.”

The actual argument (as opposed to the straw man that Justice Kennedy sets up) is that legally redefining marriage changes its social meaning for everyone—a change...

“only the rights of two consenting adults whose marriages would pose no risk of harm to th...

“is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.”

[T]he Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman.

Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.”

Marriage can and should be color-blind, but it cannot be blind with regard to the two sexes. The color of two persons’ skin has nothing to do with whether they can unite in the sort of comprehensive union naturally oriented to family life, in which the lovemaking act is also a life-giving act—the kind of union that demands permanence and exclusivity. Race has nothing to do with whether they can give any children born of their union the love and knowledge of their own mother and father. Race has nothing to do with society’s orderly reproduction, which the court’s preceding cases recognize as central to the fundamental right to marry. The sexual difference between a man and a woman, however, is central to each of these concerns. Men and women, regardless of their race, can unite in marriage, and children, regardless of their race, need their mom and dad.

“has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.”

Think of a student who can’t find good support for a claim in a term paper and so adds dozens of tangential references—as if many weak arguments somehow combine to yield a strong one.

distinguishing between opposite-sex and same-sex couples is rationally related to the States’ ‘legitimate state interest’ in ‘preserving the traditional institution of marriage.’”

“the majority invokes our Constitution in the name of a ‘liberty’ that the Framers would not have recognized, to the detriment of the liberty they sought to protect.”

In “the American legal tradition,” he writes, “liberty has long been understood as individual

freedom from governmental action, not as a right to a particular gove...

[T]hey have been able to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.

So nothing in the Fourteenth Amendment—nothing in the Due Process Clause or the Equal Protection Clause—authorized five unelected judges to redefine marriage for the nation.

Judicial activism is harmful. The Obergefell ruling will likely harm the body politic in four distinct ways: it will harm constitutional democratic self-government, it will harm marriage itself, it will harm civil harmony, and it will harm religious liberty.

“It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

“This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

“Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments.”

“those powers ‘reserved to the States respectively, or to the people’ can be exercised as the States or the People desire.”

“whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it r...

“Of cours...

“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. . . . A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy [emphasis in original].”

The court’s super-legislative power should trouble anyone concerned with representative government, because it is not representative of the American people.

And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

No social transformation without representation: our constitutional democracy in a nutshell.

But there’s no reason to think the revisionist view of marriage is the correct one, and there’s certainly nothing in the Constitution requiring government to adopt it.

“This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.”

“States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.”

But as the expectations associated with marriage were weakened,

If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the

tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage.

Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

The Obergefell court has no answer.

Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

“seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own ‘understanding of what freedom is and must become.’”

The court had no reason—no basis in the Constitution—to short-circuit the democratic process. No reason to end the national discussion we were having about the future of marriage.

“There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice

are less likely to accept the ruling of a court on an issue that does not seem to be the sort of ...

“many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution.”

“the majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations.”

“By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.”

Most alarmingly, the majority opinion never discusses the free exercise of religion.

Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.

Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.

“Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”