Announcements today and last week from the First and Ninth Circuit Courts have set the stage for the Supreme Court to weigh in concerning the central institution that has ordered society since before the advent of modern states.
Massachusetts v. HHS and Perry v. Brown represent two sides of the same activist coin in attempts to redefine marriage through the courts. This process strips power from citizens and the elected branches of government at both the state and federal levels to determine a question not directly addressed in the text of the U.S. Constitution, because the meaning of marriage was assumed.
As my co-authors and I recently explained, the current debate is not about who can marry, but about what marriage is. This question should not be answered by unelected and electorally unaccountable judges, but by citizens and their elected representatives.
May was a busy month for the marriage debate. On May 8, citizens of North Carolina voted by an overwhelming majority (61 percent to 39 percent) to constitutionally define marriage as the union of a man and woman. A few days before that vote, Vice President Joe Biden expressed support for same-sex marriage, so it came as no surprise when, a day after North Carolina’s vote, President Barack Obama announced his full “evolution” to support same-sex marriage. Then late last week, the U.S. Court of Appeals for the First Circuit struck down as unconstitutional the portion of the Defense of Marriage Act (DOMA) defining marriage for federal purposes as the union of a man and woman in Massachusetts v. HHS. DOMA was signed into law in 1996 by President Bill Clinton after passing Congress by large majorities in both houses (342–67 House, 85–14 Senate).
The First Circuit stayed its ruling pending a likely appeal to the Supreme Court, so DOMA remains in effect for the time being. If the case does reach the Court as anticipated, a decision is possible by this time next year. DOMA is also being contested in several other federal courts, including the Ninth Circuit (in Golinski v. Office of Personnel Management and an expected appeal to the circuit court from the Northern District of California in Dragovich v. Treasury); the Southern District of New York (in Windsor v. United States); and the District Court of Connecticut (Pederson v. Office of Personnel Management).
At the same time, Perry v. Brown, the case challenging the constitutionality of California’s amendment defining marriage as the union of a man and woman, known as Proposition 8, remains pending in the federal courts, where defenders of the law had asked for a rehearing by the full Ninth Circuit panel. The court announced earlier today that it will not reconsider the case, thus upholding the lower court and circuit court panel’s prior decisions invalidating Prop 8 as unconstitutional. Like DOMA, Prop 8 remains in effect pending a trip to the high Court. (Several other cases challenging the validity of state marriage laws are at preliminary stages in Nevada, Hawaii, and Illinois.)
This should remind us of important truths: Marriage exists to bring together a man and woman as husband and wife, to become father and mother to any children their union brings forth. This union of sexually complementary spouses, valuable in itself, is naturally oriented to and fulfilled in childbearing and rearing, and is rightly governed by norms of monogamy, sexual exclusivity, and permanence. The state takes an interest in marriage because children are highly needy and dependent, and marriage provides them with the best chance in life to be loved and cared for by their mother and father—mothering and fathering being two distinct, complementary, and critically important forms of “parenting.”
The law will either reflect this truth about marriage or promote a falsehood—that marriage is essentially an emotional bond. Such a view can’t possibly explain in principle or support in practice the marital norms of monogamy, exclusivity, and permanence, or explain why the state is in the marriage business in the first place. Settling this question is a job for citizens and their elected representatives, not a usurping court.