Symposium: Judicial activism on marriage causes harm: What does the future hold?

Ryan T. Anderson is the William E. Simon Senior Research Fellow at The Heritage Foundation and the author of the forthcoming book Truth Overruled: The Future of Marriage and Religious Freedom. His amicus brief was cited in Justice Clarence Thomas’s dissenting opinion in Obergefell.

As the four dissenting opinions make abundantly clear, today’s ruling in Obergefell v. Hodges had nothing to do with the Constitution. This ruling is perhaps as clear of an example of judicial activism as any we have seen in recent years – or are likely (hopefully) to see in the future. The majority of the Court simply replaced the people’s opinion about what marriage is with its own. Nothing in the Constitution supplies an answer to the question What Is Marriage? And none of the purported rationales can justify the Court redefining marriage everywhere.

This ruling will likely cause harm to the body politic: to constitutional democratic self-government, to marriage itself, to civil harmony, and to religious liberty. Because of space constraints, I highlight these four harms with quotations solely from Chief Justice John Roberts’s dissent. (Needless to say, they could be amplified with quotations from Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.)

First, the ruling will cause harm to constitutional democratic self-government. As Roberts notes, “this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’” Roberts continues:

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal argu­ments for requiring such an extension are not. The fun­damental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Indeed, Roberts repeatedly argues that in Obergefell the Court has simply Lochner-ized – “the majority’s ap­proach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that char­acterized discredited decisions such as Lochner v. New York.”

Second, the ruling will cause harm to marriage itself. 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 to a relationship with their mother and father.

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.” Roberts 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?

For marriage policy to serve the common good it must reflect the truth that marriage unites a man and a woman as husband and wife so that children will have both a mother and a father. Marriage is based on the anthropological truth that men and woman are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father.

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.

Third, the ruling will cause harm to 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. As Chief Justice Roberts points out,

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.

Yet in the middle of such a robust debate, 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 less accepted – 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 put a stop to 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.

Fourth, the ruling will cause harm to religious liberty. As Roberts notes, the decision “creates serious questions about religious liberty. 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.”

Most alarmingly, the majority opinion never discusses the free exercise of religion. Roberts notes, “The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach their views of marriage. The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.”

Indeed, as Roberts notes, “Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.” Why can they take no comfort? 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 and over again, the majority attacks the 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, “[i]t 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.”

In conclusion, because the Court has inappropriately redefined marriage everywhere, there is urgent need for policy to ensure that the government never penalizes anyone for standing up for marriage. As discussed in my new book, Truth Overruled: The Future of Marriage and Religious Freedom, we must work to protect the freedom of speech, association, and religion of those who continue to abide by the truth of marriage as union of man and woman.

At the federal level, the First Amendment Defense Act is a good place to start. It says that the federal government cannot discriminate against people and institutions that speak and act according to their belief that marriage is a union of one man and one woman. States need similar policies.

Recognizing the truth about marriage is good public policy. Today’s decision is a significant setback to achieving that goal. We must work to reverse it and recommit ourselves to building a strong marriage culture because so much of our future depends upon it.