Later this month The Supreme Court is expected to issue its ruling on state marriage laws. Here are the three most important things you need to know about the case, and what to do after the Court rules.
1. Whatever people may think about marriage as a policy matter, everyone should be able to recognize the U.S. Constitution does not settle this question. Unelected judges shouldn’t insert their own policy preferences about marriage and then say the Constitution requires them everywhere.
There simply is nothing in the Constitution that requires all 50 states to redefine marriage. Sen. Rob Portman, R-Ohio, represents one of the states whose law is under review by the Court. While Portman is personally in favor of same-sex marriage, Portman is against the Court unilaterally redefining marriage for the entire country. Portman rightly recognizes that marriage policy must be worked out democratically.
After all, the overarching question before the Supreme Court is not whether a male–female marriage policy is the best, but only whether it is allowed by the Constitution. Nor is it whether government-recognized same-sex marriage is good or bad policy, but only whether it is required by the Constitution.
If the Court were to redefine marriage for the entire country it would be engaging in judicial activism because the Constitution does not require such a redefinition. Rather than rush to a 50-state “solution” on marriage policy for the entire country, the Supreme Court should allow the laboratories of democracy the time and space to see how redefining marriage will impact society as a whole.
There is no need for the Court to “settle” the marriage issue like it tried (unsuccessfully) to settle the abortion issue. As I told George Stephanopoulos in April on ABC’s “This Week,” because the Supreme Court cut the democratic process short on abortion, it exacerbated tensions in American public life over the issue.
Our politics on abortion have been polarized because the Court didn’t allow the democratic process to work. Why would the Court want to repeat that mistake? Why would the Court want to inflame the culture wars on another issue?
Allowing marriage policy to be worked out democratically will give citizens and their elected representatives the freedom to arrive at the best public policy for everyone.
2. The government is not in the marriage business because it’s a sucker for adult romance. No, marriage isn’t just a private affair; marriage is a matter of public policy because marriage is society’s best way to ensure the well-being of children. State recognition of marriage protects children by encouraging men and women to commit to each other—and to take responsibility for their children.
Marriage exists to bring a man and a woman together as husband and wife, as well as to be father and mother to any children their union produces. Marriage is based on the anthropological truth that men and woman are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father.
Redefining marriage to make it a genderless institution fundamentally changes marriage: It makes the relationship more about the desires of adults than about the needs—or rights—of children. It teaches the lie that mothers and fathers are interchangeable.
Everyone in this debate favors marriage equality. Everyone wants the law to treat all marriages in the same ways. The only disagreement our nation faces is over what sort of consenting adult relationship is a marriage. Since the Constitution doesn’t answer that question, the people and their elected representatives should.
3. Whatever the Court rules about marriage, the government should not discriminate against any citizen, charity, school, business or any other institution of civil society that continues to believe that marriage is the union of husband and wife. Even if the Court issues an activist decision mandating states to recognize same-sex relationships as marriages, such a ruling does not mean that government has to force citizens and institutions of civil society to violate their beliefs. Nor should it mean that.
Again we can look to Portman. While he is personally in favor of democratically redefining marriage, he does not want the government to force his definition onto other people, coercing them into violating their consciences and penalizing them if they refuse.
Unfortunately, there have been too many cases where the government has coerced and penalized citizens simply for acting in accordance with their belief that marriage is the union of husband and wife.
This must stop.
After all, sexual liberty and religious liberty can co-exist. And ordinary citizens want them to coexist. Ordinary Americans—both those in favor of gay marriage and those who oppose gay marriage—do not want the government violating the rights of conscience of their neighbors.
Policy should prohibit the government from discriminating against any individual or group, whether nonprofit or for-profit, based on their beliefs that marriage is the union of a man and woman or that sexual relations are reserved for marriage. The government should be prohibited from discriminating against such groups or individuals in tax policy, employment, licensing, accreditation, or contracting.
No matter what the Court decides, the United States is in a time of transition. Beliefs about human sexuality are changing. Will the right to dissent be protected? Will the right of Americans to speak and act in accord with what the United States had always believed about marriage—that it’s a union of husband and wife—be tolerated? It should.