Why That Texas Judge Was Wrong to Strike Down Texas’ Marriage Law

U.S. District Judge Orlando Garcia discarded the votes of 76 percent of Texans as he struck down Texas’s 2005 constitutional amendment defining marriage as the union of man and woman. In his opinion for the court, Garcia claims that the “court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the U.S. Constitution and Supreme Court precedent.” He added that “without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our U.S. Constitution.”

But this appeal to inequality fails to address the question of what marriage is and what legitimate governmental purpose marriage serves.

Equality demands that we treat in the same ways things that are the same. But a same-sex relationship is fundamentally different from a marriage. No same-sex union can produce a child. And no same-sex relationship can provide a child with a mother and a father.

The government isn’t in the business of affirming our loves. Rather, it leaves consenting adults free to live and love as they choose.

And consenting adults are legally free to do so. Contrary to what some say, there is no ban on same-sex relationships. Nothing about them is illegal. In all 50 states, two people of the same sex may choose to live together, choose to join a religious community that blesses their relationship, and choose a workplace offering joint benefits.

What’s at issue is whether the courts will redefine marriage—and then force every citizen, religious institution, and business to treat same-sex relationships as if they are marriages. At issue is whether the government will trample the constitutional rights of Americans (such as the free exercise of religion) as it coerces and compels them to recognize and affirm same-sex relationships as marriages.

While respecting everyone’s civil rights, government rightly recognizes, protects, and promotes marriage between a man and a woman as the ideal institution for procreative love, childbearing, and child-rearing. Recognizing that we are all created equal doesn’t challenge this historic understanding.

Nor does the Supreme Court’s ruling last summer in the Defense of Marriage Act case. While the Court ordered the federal government to recognize all state-recognized marriages (including same-sex relationships), the Court declared that “the definition and regulation of marriage has been treated as being within the authority and realm of the separate States.” The states remain free—and should continue—to define marriage as the union of one man and one woman.

Indeed, Justice Samuel Alito’s dissenting opinion makes clear the actual constitutional status of marriage laws. Alito frames the debate as a contest between two visions of marriage—what he calls the “conjugal” and “consent-based” views. It is a contest in which the Constitution takes no sides.

Alito cites my book, What Is Marriage? Man and Woman: A Defense, as an example of the conjugal view of marriage: a “comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life.” He cites Jonathan Rauch as a proponent of the consent-based idea that marriage is a commitment marked by emotional union.

Alito explains that the Constitution is silent on which of these substantive visions of marriage is correct. The Court, he says, should defer to democratic debate.

Indeed, whatever any individual American thinks about marriage, the courts shouldn’t redefine it. Marriage policy should be worked out through the democratic process, not dictated by unelected judges. The courts should uphold the freedom of the American people and their elected representatives to make marriage policy.