Judicial activism causes harm. The Obergefell ruling written by Justice Anthony Kennedy will likely cause four distinct types of harm to the body politic: to constitutional democratic self-government, to marriage itself, to civil harmony, and to religious liberty. It’s a major theme of my forthcoming book “Truth Overruled: The Future of Marriage and Religious Freedom.”
1) Harm to constitutional democratic self-government
The ruling has already and will continue to cause harm to constitutional democratic self-government. As Justice Antonin Scalia points out in his dissent, “It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” Constitutional democratic self-government is vitally important; indeed it is our first right.
Scalia continues: “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: The freedom to govern themselves.”
Of course, democratic self-government isn’t unlimited. That’s why I’ve referred to constitutional democratic self-government. For We the People placed limits on the authority we delegated to the political branches of government. That’s what a constitution is all about. Scalia therefore notes that the “Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments.” But apart from the limits We the People placed on ourselves, “those powers ‘reserved to the States respectively, or to the people’ can be exercised as the States or the People desire.”
So the question before the court was “whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?”
Scalia’s response: “Of course not.” And that’s why judicial activism has done harm to self-government.
Scalia concludes: “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. … A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” Why not? Because such a system disparages the ability of ordinary Americans to govern themselves.
Another reason why the court’s claim to super-legislative power should trouble anyone concerned with representative government is that the court itself is not representative of the American people. Scalia notes that the current Supreme Court “consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School.” Besides their elite legal background, Scalia points out a couple other relevant facts:
Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
No social transformation without representation: Our constitutional democracy in a nutshell.
2) Harm to marriage
The ruling will cause harm to marriage itself. Chief Justice John Roberts notes that marriage “arose in the nature of things to meet a vital need: Ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.” But redefining marriage makes it more about the romantic desires of the consenting adults involved than about the needs or the rights of children involved in a relationship with their mother and father.
Justice Samuel Alito points out that the court’s “argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need.” But there’s no reason to think this revisionist view of marriage is the correct one—and there’s certainly nothing in the Constitution requiring government to adopt it.
To give you an idea of just how bad the language is from Kennedy on what marriage is, consider the list of terms that George Mason University Law School Professor Helen Alvare compiled:
The Supreme Court rules instead, however, that marriage is about adults’ ‘defin[ing] and express[ing] their identity,’ adults’ desire for ‘nobility,’ ‘fulfillment,’ ‘aspirations,’ ‘autonomy,’ ‘self-definition,’ avoiding of ‘loneliness,’ and desire for ‘companionship and understanding’. The list goes on.
As Alito explains, “This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.” Kennedy simply ignores the actual arguments for the truth about marriage.
>>> For more on this, see Ryan T. Anderson’s new book, “Truth Overruled: The Future of Marriage and Religious Freedom”
But obscuring the truth about marriage has consequences. As Alito recounts the argument of the states, “Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.” But as the expectations associated with marriage were weakened, so were the benefits that marriage provides.
If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40 percent of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage.
Alito gets it right. A bad understanding of the family (the Sexual Revolution) began to undermine the family, which led to more bad ideas—and laws—that will in turn lead to more breakdown. 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.
Indeed, the judicial redefinition of marriage to exclude the marital norm of male-female sexual complementarity raises the question of what other marital norms may be excluded. Roberts writes: “One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.” He continues:
Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If ‘[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,’ why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise ‘suffer the stigma of knowing their families are somehow lesser,’ why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?
Roberts sees the logic (or, rather, illogic) of marriage redefinition. And Kennedy has no answer.
3) Harm to civil harmony
The ruling will undermine civil harmony. When fundamental policy changes are made by court rulings that have no basis in the Constitution, it makes change harder to accept—because it casts doubt on the change itself. Scalia notes that American self-government was working:
Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.
And Roberts points out that the court has now put an end to all of that:
Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
In the middle of such a robust debate, Roberts points out that the court “seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own ‘understanding of what freedom is and must become.’” This will make the redefinition of marriage more contested in the United States. Roberts elaborates:
The court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage. … This deliberative process is making people take seriously questions that they may not have even regarded as questions before.
When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate.
But today the court puts a stop to all that.
The court had no reason—no basis in the Constitution—to short-circuit the democratic process. No reason to end the national discussion we were having about the future of marriage. Roberts continues, “There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.” Just so.
Prodding Justice Ruth Bader Ginsburg, who joined Kennedy’s majority opinion, Roberts quotes from a law review article she wrote on how Roe v. Wade caused harm to civil harmony. Here’s Ginsburg:
The political process was moving … , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.
Obergefell has now provoked conflict rather than resolved it.
4) Harm to religious liberty
The ruling, as Roberts notes, “creates serious questions about religious liberty.” He observes that “many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution.” When marriage was redefined democratically, citizens could accompany it with religious liberty protections, but “the majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations.”
In addition to this procedural point—that courts, unlike lawmakers, can’t forge compromises—Alito points out that activists will use the decision’s rhetoric to attack religious liberty:
It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.
Alito predicts dark days ahead: “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.” And we have the court to blame: “By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.”
>>> For more on this, see Ryan T. Anderson’s new book, “Truth Overruled: The Future of Marriage and Religious Freedom”
Most alarmingly, the majority opinion never discusses the free exercise of religion. Roberts wryly notes that “the majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage.” But the First Amendment, he says, “guarantees … the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.”
Justice Clarence Thomas picks up on this as well, noting that the majority opinion “indicates a misunderstanding of religious liberty in our Nation’s tradition.”
Religious liberty is about more than just the protection for ‘religious organizations and persons … as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.’ Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.
Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this court’s constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.
We must now protect religious liberty, for as Roberts notes, “Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.” Why not? Because “the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate.” Over and over, the majority attacks Americans who stand for marriage as the union of husband and wife. And as Robert notes, “These apparent assaults on the character of fair minded people will have an effect, in society and in court. Moreover, they are entirely gratuitous.”
Indeed, “It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s ‘better informed understanding’ as bigoted.”
This is why the First Amendment Defense Act is so vitally important.
If passed and signed into law, this act would prohibit the federal government from ever discriminating against any citizen, charity, school, or business because they believe and act on the belief that marriage is the union of a man and woman. Just as the pro-life movement ensured that no pro-life citizen would ever have to pay for an abortion or perform an abortion, so too must we work to ensure no one is coerced on marriage. Rather than forcing people and institutions of faith to go to court for their religious liberty, this bill would prevent the government from ever acting unjustly in the first place.
We need good policy at all levels of government. Governors have an opportunity right now to issue executive orders preventing state agencies from discriminating against or otherwise penalizing citizens and organizations that continue to believe marriage is the union of a man and a woman. State legislatures can pass laws doing the same.
America is in a time of transition. The court has redefined marriage, and 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?
Most Americans say yes, they want to be a tolerant, pluralistic nation. They want peaceful coexistence. I agree with them. It’s only ideologues and activists who want to sow the seeds of disharmony by threatening those with whom they disagree by revoking their tax-exempt status, taking away their government licenses, suing them out of business, or stripping them of their legal protections.
The First Amendment Defense Act would achieve civil peace even amid disagreement by protecting pluralism and the rights of all Americans, whatever faith they may practice. This act is good policy and liberals committed to tolerance should embrace it.
For much more on this, pre-order “Truth Overruled: The Future of Marriage and Religious Freedom” today.
