Politico's odd question on same-sex marriage and the Supreme Court

As with many in the punditry industry today, my morning reads focused on the Supreme Court’s hearing today on two cases involving the definition of marriage in public policy.  There are plenty of articles in which analysts handicap the various potential outcomes, which after the decision on ObamaCare seems like a riskier prospect than ever before. There are also plenty of arguments being made on all sides of the issue, including from me in my column today for The Week.


However, I was particularly struck by the headline from this overview at Politico: “Can gay marriage survive SCOTUS loss?” Besides putting the cart before the horse, the question fundamentally misunderstands how government policy should be created, and it also contradicts the thrust of its own article:

The tide might be turning in favor of gay marriage, but that doesn’t mean the Supreme Court will be swept up in it.For all the toasting in Washington and excitement among gay rights groups about the historic oral arguments this week, there’s still a chance the case could culminate in a loss.

But gay rights activists say this wouldn’t have the impact of Plessy v. Ferguson — the 1896 decision that left “separate but equal” the law of the land until Brown v. Board of Education six decades later.

Instead, they say, they still leave the court in a better position than when they started their legal trek, since public opinion has swung in their favor, supporters have been galvanized, and about 100 prominent Republicans signed a brief publicly endorsing gay marriage.

First, for better or worse, I think the activists have that right. Gay marriage is clearly not going to live or die based on the decision this court hands down in the next few months. Even a total defeat at the Supreme Court would not derail the same-sex marriage movement; it would just force it back into the legislative/referendum process at the state level, which is where it belongs.

That being said, I’m not exactly sanguine about the prospects for judicial restraint here. I have serious doubts about the prospects of the Supreme Court upholding DOMA.  It’s too easy a target for the court, an attempt to rewrite the “full faith and credit” clause of Article IV, Section I of the Constitution without an actual amendment to the Constitution.  I’m much more concerned about the way that the court treats Proposition 8, not so much because of its content but because a repeal would create even more precedent for judicial activism in the face of direct democracy, as I explain in my column:


However, one case in particular presents a contradictory question to the Supreme Court. In pushing to overturn a referendum passed by a large majority in California that enshrined the traditional definition of marriage into the state constitution, the opponents of Proposition 8 argue in essence that both the process and the policy chosen by the voters are entirely illegitimate. Voters used a direct-democracy mechanism that has existed in California for decades to amend the constitution no differently than other such propositions, and affirmed the definition of marriage that has existed during the entire history of this country. The challengers don’t like the outcome, and argue that nine justices should only accept as a legitimate result of that referendum a definition of marriage that until the last few years few would have accepted, and negate a legitimate outcome in an election. That’s an argument for an oligarchy or an autocracy, not a democracy.

Rich Lowry is on the same page:

Supporters of traditional marriage believe that the institution exists as an expression of society’s interest in children’s being raised by their biological fathers and mothers. You can say that this understanding is dated, given what has become of marriage the past 40 years. You can say that it is too pinched, given evolving mores. You can’t say it is inherently hateful.

If the Defense of Marriage Act is wrongheaded, the solution is simple and will be within reach in a few years if gay marriage continues to win converts — repeal it. And there is nothing wrong with Proposition 8 that California’s voters can’t fix by going to the polls again.

On the question of marriage itself, David Frum argues that it’s already a settled issue, thanks to the libertarian beliefs of the younger generation of voters.  To that extent, I agree — which is why the Supreme Court should leave Proposition 8 in place and overturn the Ninth Circuit’s intervention.  If Californians change their mind about the definition of marriage, they can hold another referendum or elect a legislature to amend the state constitution to reflect that preference in government policy.


Rather than organize that effort, however, the opponents of Prop 8 want justices to negate election results that they don’t like, based on an argument that fundamentally misunderstands the interest of the state in marriage recognition, which I explain in at The Week:

Supporters of same-sex marriage talk of “legalizing” gay marriages, but that’s not an accurate depiction of current law. No U.S. state, regardless of its definition, will prosecute same-sex couples who call themselves “married,” nor should they, outside of an intent to defraud — which is a crime regardless of the sexual circumstances. In fact, the government has a very limited legitimate interest in sexual or living arrangements. Especially after the Lawrence v. Texas case, the government has no role in regulating sexual activity with the exception of consanguinity (close blood relations), use of force and victimization, commercial trafficking of sexual favors, and exploitation of minors.

No one wants the government to dictate who may or may not share a bed, outside of those exceptional circumstances. Those who choose to cohabit in non-traditional relationships have ample options for formalizing their arrangements through the private contract process, which government enforces but does not sanction. That leaves adults free to choose whatever sexual arrangements they desire outside of the actual prohibitions that are objectively applied to everyone. That is actual freedom and equality.

Marriage, however, is a unique status even apart from religious concerns, which I’ll address later. Marriage licenses exist as government recognition of the unique procreative potential of heterosexual relationships. The government takes a special interest in that potential for good reason — because a failure of the procreators to act as proper guardians forces the government to build safety-net systems for children whose parents either cannot or will not provide for them. Marriage provides a structure for assigning responsibility for children potentially produced by heterosexual relations. Put simply, it fixes responsibility for paternity on the husband, regardless of who may have fathered the children during a marriage — a fact that more than a few cuckolded husbands have discovered during divorce settlements. That structure ensures that the state can enforce responsibility for the care of its most vulnerable citizens, even to the extent of criminal prosecution for neglect.


Frum argues that we should be more focused on the crisis in heterosexual marriage rather than the legalizing of same-sex marriage:

But while straight young Americans support marriage for gays, increasingly they opt against marriage for themselves. Nearly half of American children, 48%, are now born to unmarried women. Among women without college degrees, and of all races, unwed motherhood has become the norm.

This is the crisis of the American family. Whether same-sex marriage proceeds fast or slow, whether it extends to all 50 states or stops with the current nine plus the District of Columbia, the crisis will be the same.

Again, I don’t necessarily disagree, but the two are related:

In Western societies, including the U.S., marriage has always been a forward-looking institution aimed at protecting and nurturing the next generation of children, not a love license for the adults of the present.

We are turning a fundamental building block that focused on the next generation into a status symbol for adults in the present.  Furthermore, we’ve spent the last several decades eliminating the social and economic benefits of heterosexual marriage and undermined the value of intact nuclear families, through both government policies (especially in safety-net programs and no-fault divorce) and popular culture. Should we be surprised that younger adults see less value in government-issued love licenses that look less attractive and provide more disincentives than incentives as time passes?

Furthermore, there is certainly a religious argument to be made for the traditional marriage definition, but we live in a pluralistic society where those doctrines aren’t determinative.  However, a shift in the state’s definition of marriage will almost certainly result not in more tolerance, but in active persecution of religious organizations that won’t support a definition that includes same-sex couples:


For example, a baker in Oregon faces potential criminal charges for refusing to provide a wedding cake for a same-sex couple because of his religious beliefs. What happens when churches refuse to perform such ceremonies for the same reason?

Most people scoff at this question, but religions have partnered with the state on marriages in a way that bakers have not. Priests, ministers, rabbis, and imams act in place of the state when officiating at wedding ceremonies, and states that legalize same-sex marriage are eventually going to be forced by lawsuits to address that partnership, probably sooner rather than later. In similar partnerships, that has resulted in pushing churches out of business.

Massachusetts demanded that Catholic adoption agencies, which handle private adoption in an arrangement that is less of a stand-in for government than in officiating at weddings, to place children with same-sex couples. The Boston diocese opted to drop its adoption services rather than fight the state in court. Most recently, the federal government imposed a requirement on religious organizations and individual business owners to provide and/or facilitate free birth control and sterilization services even though it conflicts with their beliefs and doctrine. Part of the argument put forward in favor of this policy is that these religious organizations — especially Catholic health care providers — partner with the government to deliver those services, and therefore have no right to stand on religious-liberty grounds. It’s not difficult to see the writing on the wall when it comes to the ability of churches to perform a core sacrament in any meaningful sense once the government changes the definition of marriage.


And again from Lowry:

By seeking a shortcut in the courts, supporters of gay marriage want to end debate through judicial fiat. In an amicus brief in the case, the Becket Fund for Religious Liberty points out the consequences if traditional marriage is deemed irrational. Religious people and groups objecting to same-sex marriage will “face a wave of private civil litigation under anti-discrimination laws never intended for that purpose,” and they will be “penalized by state and local governments.”

In other words, supporters of the exotic-sounding practice of “opposite-sex marriage” will be marginalized forevermore.

Under these circumstances, with the state shirking its interest in protecting the next generation by limiting specific recognition to relationships with at least the theoretical potential for procreation, we should demand that government get out of the marriage business altogether. I’d prefer we stick to the traditional definition, or at least to the democratic processes that should be used to determine government policy, but I’m pessimistic that this Supreme Court will provide that outcome.

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