Marriage, the Court, and the Future

By Anderson, Ryan T. | Harvard Journal of Law & Public Policy, May 2017 | Go to article overview

Marriage, the Court, and the Future


Anderson, Ryan T., Harvard Journal of Law & Public Policy


INTRODUCTION I.   WHAT THE COURT SAID (AND HOW IT GOT IT      WRONG) II.  THE DISSENTS III. WHAT THE DISSENTING JUSTICES HAD TO SAY      ABOUT THE HARMS THIS RULING WOULD      CAUSE      A. Harm to Constitutional Democratic Self-Government      B. Harm to Civil Harmony      C. Two Views of Marriage IV.  THE COMPREHENSIVE VIEW OF MARRIAGE      A. An Academic Community      B. The Marital Community      C. The Comprehensive View of Marriage Is         Based on Human Nature, Not Anti-Gay         Animosity V.   WHY MARRIAGE MATTERS FOR PUBLIC POLICY VI.  CONSEQUENCES OF REDEFINING MARRIAGE      A. Serving the Desires of Adults, Not the         Needs or Rights of Children      B. Weakening Marital Norms      C. The Norm of Monogamy      D. The Norm of Exclusivity      E. The Norm of Permanence      F. What's in a Name?      G. Threatening Religious Liberty 

INTRODUCTION

The Supreme Court's ruling in Obergefell v. Hodges (1) is a serious setback for Americans who believe in the Constitution, the rule of law, self-government, and marriage as the union of husband and wife. The Supreme Court has not simply decided a case incorrectly, it has damaged the common good and harmed our republic. The ruling is as clear of an example of judicial usurpation as we have had in a generation. Nothing in the Constitution justifies the redefinition of marriage by judges. In imposing on the American people its judgment about a policy matter that the Constitution leaves to citizens and their elected representatives, the Court has inflicted serious damage on the institution of marriage and the Constitution.

In the majority opinion, written by Justice Anthony Kennedy, the Court declares: "The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest." (2) Manifest to five unelected and unaccountable judges, that is. Not to the American citizens who, in state after state, voted to uphold the true definition of marriage, (3) and certainly not to the Americans who ratified the Fourteenth Amendment, on which the Court relies. The majority of the Court has simply replaced the people's opinion about what marriage is with its own, without any constitutional basis whatsoever.

Almost everyone was and is in favor of marriage equality because almost everyone wants the law to treat all marriages equally--that is, in the same way. The debate in the United States in the decade and a half before Obergefell was not about equality. It was about marriage. We disagreed about what marriage is.

Of course, "marriage equality" was a great slogan for the Left. It fits on a bumper sticker. You can make a red equal sign your Facebook profile picture. It is a wonderful piece of advertising. And yet it's completely vacuous. It doesn't say a thing about what marriage is. Only if you know what marriage is can you then decide whether any given marriage policy violates marriage equality. Before you can get to considerations of equal protection of the law, you have to know what it is that the law is trying to protect equally.

Sloganeering aside, appeals to "marriage equality" betray sloppy reasoning. Every law makes distinctions. Equality before the law protects citizens from arbitrary distinctions, from laws that treat them differently for no good reason. To know whether a law makes the right distinctions, whether the lines it draws are justified, one has to know the public purpose of the law and the nature of the good it advances or protects.

After all, even those who want to redefine marriage to include same-sex couples will draw lines defining what sorts of relationships are a marriage and what sorts are not. If we are going to draw lines that are based on principle, if we are going to draw lines that reflect the truth, we have to know what sort of a relationship marriage is. (4) You have to answer that question before you talk about recognizing marriage equally. …

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