On June 26 of last year, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act in United States v. Windsor, and since then lower courts have issued a string of decisions redefining marriage in the states. This month, in a widely celebrated opinion written by Judge Richard Posner, the U.S. Court of Appeals for the 7th Circuit declared that it had “no reason to think [the governments of Indiana and Wisconsin] have a ‘reasonable basis’ for forbidding same-sex marriage.”
This is remarkable. According to this court, the millions of citizens who passed marriage amendments in more than 30 states were all bigots acting on no reasonable basis when they supported marriage as the union of a man and woman — just as President Obama, Vice President Biden, former secretary of state Hillary Clinton and most members of Congress all did when these laws were passed.
While generating less fanfare, the day before Posner’s opinion was released, U.S. District Judge Martin L.C. Feldman upheld Louisiana’s marriage law — a constitutional amendment passed by 78 percent of the voters. Two federal appellate judges — Paul V. Niemeyer of the 4th Circuit and Paul J. Kelly Jr. of the 10th Circuit — issued strong dissenting opinions this summer on why state laws defining marriage as a male-female union are constitutional. As these marriage cases make their way to the Supreme Court, very likely during the term about to begin, the justices should heed the reasoning of these judges.
As Feldman notes, Louisiana’s marriage law furthers two important interests: “linking children to an intact family formed by their biological parents, as specifically underscored by Justice [Anthony] Kennedy in Windsor” and “safeguarding that fundamental social change … is better cultivated through democratic consensus.” That is, Feldman notes the two central issues in this debate: the policy question — what is marriage? — and the legal question — who gets to define marriage?
According to this court, the millions of citizens who passed marriage amendments in more than 30 states were all bigots
On the policy question, Niemeyer explains that there are indeed rational reasons for people to think that marriage is a union of husband and wife: “Only the union of a man and a woman has the capacity to produce children and thus to carry on the species. And more importantly, only such a union creates a biological family unit that also gives rise to a traditionally stable political unit.” Indeed, “when the Supreme Court has recognized, through the years, that the right to marry is a fundamental right, it has emphasized the procreative and social ordering aspects of traditional marriage.”
Niemeyer goes further, arguing that “the marriage of a man and a woman thus rationally promotes a correlation between biological order and political order.”
Some claim that allowing opposite-sex couples who cannot have children to marry flies in the face of this purpose of marriage. But while not every marriage has children, every child has a biological mother and father — and marriage policy tries to maximize the likelihood that every child will be raised by his or her mother and father. Redefining marriage to make it a genderless institution fundamentally changes marriage: It makes the relationship more about the desires of adults than the needs — or rights — of children. It teaches that mothers and fathers are interchangeable.
So, when it comes to treating same-sex relationships as marriages, as Niemeyer points out, “there are rational reasons for not recognizing it, just as there are rational reasons for recognizing it.” People can differ on whether, as a matter of policy, states should redefine marriage to include same-sex relationships. But that robust debate should not be short-circuited by judicial fiat.
That highlights the central legal question: Who gets to determine marriage policy? Kelly in the 10th Circuit points out that, in our constitutional system, the people and their elected officials should. He explains: “The Constitution is silent on the regulation of marriage; accordingly, that power is reserved to the States, albeit consistent with federal constitutional guarantees. And while the Court has recognized a fundamental right to marriage, every decision vindicating that right has involved two persons of the opposite gender.”
Redefining marriage to make it a genderless institution fundamentally changes marriage: It makes the relationship more about the desires of adults than the needs — or rights — of children.
And Kelly argues that we need not seek from the courts a single, 50-state answer: “If the States are the laboratories of democracy, requiring every state to recognize same-gender unions — contrary to the views of its electorate and representatives — turns the notion of a limited national government on its head.”
In a system of limited constitutional self-government, the people and their elected representatives should be making these decisions. And there are good arguments on both sides of this debate. Judges should not insert their own policy preferences about marriage and declare them to be required by the Constitution. As Feldman notes, “It is not for this Court to resolve the wisdom of same-sex marriage. The nation is witness to a strong conversation about what is marriage.” The courts should uphold the freedom of the American people and their elected representatives to make marriage policy.
Just as citizens are free to redefine marriage to include same-sex relationships, so too are citizens free to retain the historic definition of marriage as the union of a man and a woman — as citizens in a majority of states have done. Nothing less than the future of our society, and the course of constitutional government in the United States, are at stake.
As citizens, we must rally in support of our constitutional authority to pass laws making marriage policy. We must make clear that court-imposed same-sex marriage via a Roe v. Wade-style decision will not settle the marriage debate any better than it has settled the abortion debate.
We must insist, with Judge Kelly, that judges “should resist the temptation to become philosopher-kings, imposing [their] views under the guise of constitutional interpretation.”
This was originally published in the Washington Post.