Judicial tyranny is alive and well in the United States, and as a result the debate over the future of marriage may soon be front and center once again in the national news. Two major federal court rulings, one just released and another imminent, pose separate challenges to marriage.
First, on July 8, a federal judge in Massachusetts overruled 427 Members of Congress and struck down a key part of the federal Defense of Marriage Act (DOMA). Second, most observers consider it likely that another federal judge, this one in San Francisco, will soon strike down an amendment to California’s constitution that protects the definition of marriage as the union of a man and a woman. To make matters worse, particularly with respect to the DOMA ruling in Massachusetts, the U.S. Department of Justice under President Obama is fighting for traditional marriage with an empty head and both hands tied behind its back. This sorry spectacle seriously undermines both the public trust and the essential meaning of marriage in civil society.
A handful of states and the District of Columbia have redefined marriage, four of them under pressure from state courts. However, a much larger number of states, more than 40, have shored up their protections for traditional marriage during the same period. Thirty of them have done so by state constitutional amendment. Not a single state (Arizonans rejected a first attempt in 2006, then passed constitutional protection for traditional marriage in 2008) has seen its populace vote directly to install same-sex marriage. Popular majorities in states as diverse as Maine, California, Ohio, Wisconsin, and Mississippi have voted to protect marriage. Overall almost 64 percent of the nearly 60 million popular votes cast to date have favored preserving marriage as the union of one man and one woman.
This only makes it all the more shocking that some prominent proponents of same-sex marriage and even a few judges would compare advocates for marriage to racial bigots. A similar ugliness can be found in the spate of incidents in which activists for same-sex marriage have physically confronted citizens who support keeping marriage as it is. Such incidents have continued this summer.
Without doubt, the future of marriage is vital to the health and well-being of any society that wants to maintain a vibrant civil sector. The first “small platoons” of society are those units formed out of the commitment of individual men and individual women to love one another and to bring new life into the world. The evidence that children do best when they can rely on the committed love of their parents is extraordinarily powerful. The stresses and strains affecting today’s families—and driving up the rates of out-of-wedlock childbearing—are properly the concern of every American—and of the law.
Moreover, the prospect that the civil sector will long thrive in a nation of ever-weakening family bonds is small indeed. As economist Jennifer Roback Morse has stated, “It is simply not possible to have a low-impact government in a society with no social or legal norms about family structure, sexual behavior and childrearing. The state will have to provide support for people with loose or non-existent ties to their families.”
For these reasons and more, debates about the social and legal norms our laws and culture should embrace belong with the people and the legislators we choose—not with judges who enjoy lifetime appointments to the bench. Two hundred and twelve years ago this summer, Alexander Hamilton championed the ratification of our Constitution by reassuring a skeptic, “Here, sir, the people govern; here they act by their immediate representatives.” For this reason, Hamilton thought that the judiciary would be the “least dangerous” branch of government to our basic liberties.
The wisdom of the founders is still wise: The courts of the land are not the place, if indeed there is any place, to redefine the family. Judicial activism to overturn marriage must cease.