Symposium: A tremendous defeat for “We the People” and our posterity

David R. Upham is an attorney and associate professor of politics at the University of Dallas. He blogs regularly about marriage at whygethitched.com.

About five generations ago, our nation adopted the Fourteenth Amendment. In that same generation, our nation’s Supreme Court declared that “nothing was more wholesome and necessary in the founding of a free, self-governing commonwealth” than “the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony.” Seemingly all American legal authorities concurred.

About five decades ago, for the first time ever, an American litigant claimed that our Constitution required the states to reject this view of marriage, and instead to issue marriage licenses to persons of the same sex. Upon hearing this claim, in 1972, the Supreme Court summarily rejected it as unserious, involving no “substantial federal question.” Seemingly all American legal authorities concurred.

Indeed, for the first two centuries in the life of our Republic, Americans largely agreed on the meaning and purpose of marriage. Marriage was the union of a male and a female, designed to serve, as its chief and defining social purpose, the procreation and education of the spouses’ offspring. This definition necessarily incorporated various discriminations – e.g., on the basis of number (two and only two persons), natural personhood (corporations and other artificial persons cannot marry), and gender diversity (male and female).

So deep was this consensus that until forty years ago, no state deemed it necessary to incorporate the male-female definition into its statutory or constitutional law. No jurisdiction needed to “ban” or “prohibit” same-sex “marriage” any more than to ban inter-corporate “marriage.” The central meaning and purpose of “marriage” was clear.

But for the last half-century, this consensus has sustained a relentless and withering attack, both in law and the culture at large. The attack came on all sides, mainly against marriage’s educational purpose, via both the sexual revolution’s dethroning of marriage as the stable, privileged context for sex (and thus potential procreation), and the “no-fault” revolution’s endorsement of casual, unilateral divorce – even with children involved.

In the last two decades, a new challenge arose – to the very definition of marriage. And now, this morning, the Supreme Court threw its full authority behind this last assault. The Court declared that our national Constitution, via the Fourteenth Amendment, prohibits the states from preserving the traditional definition of marriage.

This decision is nothing less than a judicial revolution. It represents a disaster for our Constitution, our common Republic, and our children.

A defeat for our Constitution

The most salient casualty today is our Constitution’s cardinal principle of popular self-government. The people made the Constitution and vested certain limited legislative powers in a Congress to be chosen by the people. Further, the people reserved all other legislative powers to the states, each of which was guaranteed, though the Republican Guarantee Clause, a popular form of government. The duty to safeguard these popular governments was imposed on the whole “United States” – including the judicial officers thereof.

But today, a majority of the Justices abdicated from this duty. Instead, the Court engaged in a naked usurpation of the people’s authority to govern themselves.

The second constitutional casualty is the principle of legislation by divided and representative bodies. Our Constitution recognizes at least two forms of such legislative authority: the bicameral elected Congress subject to the presidential veto (the mode of adopting federal statutes), and the concurrence of three-fourths of the elected state legislatures or state conventions (the mode of adopting constitutional amendments).

But today’s decision was made by a naked majority of a small, unelected, unicameral, and unrepresentative body. The lack of diversity on the Court is stunning. All nine of the Justices attended Yale or Harvard Law School. Each of the five Justices in today’s bare majority grew up in just two heavily liberal urban areas – New York City and the San Francisco-Sacramento area.

Nor can it plausibly be said that the people at large have generally demanded today’s result. As the Court noted, the states and the people remain deeply divided.

Nor has even a bare majority of our divided people formally acted so as to endorse national same-sex marriage. To the contrary, the voters have recently signaled their disagreement, especially as to nationalized same-sex marriage. Three years ago, the people reelected as president a man who personally and via his party’s platform, adopted a more moderate position. They supported not only same-sex marriage but also the states’ reserved authority to decide otherwise. In particular, both President Obama and his party endorsed the proposed “Respect for Marriage Act” which was expressly designed not only to repeal DOMA, but also “to ensure respect for State regulation of marriage.”

Further, in that same election, the narrow victories for same-sex marriage in heavily blue states indicated that had the issue been on the ballot nationwide, a clear majority of the whole people would probably have voted to preserve traditional marriage. And just nine months ago, in the midterm elections, the people elected a clear majority of marriage-traditionalists as senators and representatives. And exit polls suggested an electorate that was evenly split on the question.

A defeat for our common republic

But to these objections, the Court today provided this answer: “democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.” One of those rights, the Court said, was the right of two persons, regardless of gender diversity, to contract a union with the public status, rights, and duties of “marriage.”

The dissenting opinions fully answer the majority on this score. Indeed, the majority’s conclusion is so bereft of any foundation in constitutional text, intent, or precedent so as to prompt this question:

Does anyone really believe that our Constitution, fairly and honestly construed, compels the states to adopt the new definition of marriage?

Besides its utter implausibility, the majority’s main argument is deeply offensive and exclusionary.

The main argument is a syllogism. The major premise is that the “liberty” protected by the Fourteenth Amendment secures an indefinite set of rights of personal dignity – indefinite because subject to addition (and subtraction?). According to Justice Kennedy, the authors of the amendment “entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

This assertion is utterly without any foundation in historical fact. There is no evidence whatsoever that those who adopted the amendment had such a historicist view of “liberty” or constitutional interpretation. Justice Kennedy provides no supporting evidence – and for good reason: there is none.

But if the major premise is plainly wrong, the minor premise is outrageous.

The minor premise is that our “generation” and our “society” (or simply “we”) have learned something about “liberty.” According to certain “new insights and societal understandings,” we now know that marriage’s traditional definition is wrong, and that “liberty” must now include same-sex “marriage.”

Who is this “we”? Who qualifies as a member of the society to whom Justice Kennedy imputes this purported insight? He expressly notes that “the states are divided.” He concedes that across dozens of states, many legislators and citizens have voted to preserve traditional marriage.

By obvious implication, Justice Kennedy does not count among “we the people” all the citizens and legislators who are marriage traditionalists. They no longer qualify as equal members of “we the people.”

Far from proclaiming a more open society, far from respecting the dignity of others, Justice Kennedy and four of his colleagues have effectively banished from the citizenry millions of their fellow citizens.

A defeat for marriage and children

Finally, today’s decision is a defeat for our children. Children have a right to the care, custody, and education of their natural parents. The Justices, liberal and conservative, have repeatedly affirmed that the Fourteenth Amendment incorporates this right.

Marriage’s chief civil purpose is to help secure this right. It is for this reason – offspring – that marriage has always been viewed as a union of two and only two persons, both of them natural persons (no corporations, Citizens United notwithstanding), and one of them male and one of them female. It is for this reason, too, that marriage is a presumptively sexual relation and that adultery is nearly universally condemned. It is for this reason, again, that our law has imputed to “marriage” the strong presumptions of paternity and of joint property ownership; after all, the education of offspring is a very laborious and expensive joint enterprise.

Today’s decision is a disaster for the child’s right to her parents’ care and education. For reasons I explained in an amicus brief, the decision will directly impair this right by conferring the paternal presumption to an adult who cannot possible be the father of the child – the birthmother’s same-sex partner. In any custody dispute, this non-parent will have a presumptive custodial right that will both rival the birthmother’s right and utterly exclude the father’s right; he will effectively become an outsider, deprived of any duty or right to the care of his own offspring.

More ominous is the indirect effect on children’s welfare. By replacing offspring with personal commitment, the Court has ratified and endorsed a view of marriage that has already done so much harm to the number and stability of marriages – and thus to children.

The ethos of commitment makes marriage less intelligible. All the chief features of marriage – its twoness, its exclusion of artificial persons, its heavy presumptions of paternity and joint property, its ethic of sexual fidelity, and its indefinite, even lifelong duration – all make little sense. Why should “commitment” be necessarily tied to any of these features. Why only two people? Why lifelong? Justice Kennedy doesn’t say. Indeed, the major premise of his argument – the repeated redefinitions of liberty – openly invites continued judicial redefinitions and revisions to marriage, paving the way not only to a constitutional right to polygamy, but many other radical changes.

Ironically, however, while this decision seems to expand marriage, in truth, today’s decision will accelerate marriage’s decline.

The chief problem is the triumph of commitment over offspring. Commitment has made marriage both less common and less stable.

Commitment makes marriage less common by making it seem more abstract and obscure, because commitment is itself an abstraction. Further, commitment makes marriage seem rare, unattainable, and unsustainable – for commitment seems to involve an emotional intensity that seems rare, unattainable, and unsustainable.

In this vein, Justice Kennedy exalts marriage up to the skies: “marriage embodies a love that may endure even past death.” Who can find such love? And who can keep it? Only the few.

Traditional marriage is far kinder to the average man and woman. It sets the bar lower. It’s much easier to understand and attain “marriage” if your goal is to find a tolerably pleasant partner to undertake such earthly matters as cohabitation, conversation, copulation, and most of all, the care of the resulting offspring.

Traditional marriage is thus also far, far kinder to children. They need parents who just get along here on earth rather than soaring to the heavens.

Besides undermining the number of marriages, the new regime has harmed the stability of marriage. The term “commitment” became popularly associated with marriage precisely as a replacement of the tougher, less flexible concepts like “promise,” “duty,” and “bond.” Commitment, at its core, is not social but individual – it serves to ennoble personal authenticity by making it appear less capricious and selfish. At the same time, however, its proponents have tended to eschew irrevocable bonds. Commitment may be intense and deep, but it’s always provisional – dependent on personal feelings of fulfillment or authenticity. Consequently, the ethos of “commitment” has proven readily compatible with the culture of unilateral divorce – even where children are involved.

In sum, the new marriage, which relegates children to the periphery, has thus proven a disaster for them. The collapse in the number and durability of marriages has led to the decline in the number and durability of the next generation of Americans. Today’s decision, which ratifies and celebrates the new marriage – and even grafts it onto our Constitution – will aggravate and accelerate all those noxious trends.

So how should Americans treat today’s disastrous precedent? To quote one famous judge in another context, today’s decision represents “an unconstitutional assumption of powers by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.”