The Supreme Court announced disturbing decisions today on two important cases dealing with marriage law. The Court refused, however, to create a constitutional right to same-sex marriage.
In its ruling on California's Proposition 8, the Court declared that the citizen group that sponsored Prop 8 did not have standing to defend the constitutional amendment that millions of Californians voted to pass. The only reason this jurisdictional question was an issue is because the governor and attorney general of the state of California decided to not defend a law passed by the people of that state.
It is scandalous that the governor and attorney general refused to perform their duty. That abdication of their constitutional responsibility should not have prevented these laws from having a vigorous defense in court. This sets a disturbing precedent and distorts the balance of powers between the legislative, executive, and judicial branches of government. It would allow the executive branch to effectively veto any duly enacted law simply by refusing to defend it against a constitutional challenge.
While the government of California through its inaction has tried to silence the voices of Californians, the Court has not created a right to the redefinition of marriage. Marriage laws in the states that tell the truth about marriage-that it is a union of one man and one woman to provide children with a mom and a dad-have not been struck down.
And we must now work to protect marriage laws in the 37 other states defining marriage as a man and a woman across the country.
Defense of Marriage Act
In its ruling on the federal Defense of Marriage Act (DOMA), the Court struck down Section 3, declaring that the federal government cannot define marriage for its own federal policies and federal laws but must accept whatever the states decide about marriage. The Court's ruling, however, does not affect Section 2, which provides that no state is required to give effect to another state's recognition of same-sex marriages.
Here, the Court got it wrong. The Court ignored the votes of a large bipartisan majority of Members of Congress. It is absurd for the Court to suggest that Congress does not have the power to define the meaning of words in statutes that Congress itself has enacted. Just as the states have constitutional authority to make state policy about marriage, so too Congress has constitutional authority to pass a federal statute defining a term for federal programs created by federal law.
DOMA imposes no uniform definition of marriage upon the individual states, and the states should not be able to impose varying definitions of marriage upon the federal government. This is a serious loss for federalism and democratic self-government. We must work to reverse it and to defend the rights of all Americans to make marriage policy. And we should promote the truth about marriage between a man and a woman and why it matters for children, civil society, and limited government.
Nothing in the text, history, logic, or structure of the U.S. Constitution requires redefining marriage. Indeed, in a Heritage Legal Memorandum, John Eastman explains why marriage laws are constitutional:
"Nothing in the Court's jurisprudence suggests that the right of same-sex couples to have their relationships recognized as marriages is so fundamental as to be protected by the Constitution's Due Process Clause. Nor does the Equal Protection Clause require that result, given the societal purpose and value of marriage as furthering procreation and child-rearing. Because the Constitution does not speak to this question, it is one that is left to ordinary political processes, not to judicial fiat."
Marriage policy should be worked out through the democratic process, not dictated by unelected judges. The American people and their elected representatives have constitutional authority to make marriage policy.