For only the second time out of about three dozen cases, a federal judge has upheld a law banning same-sex marriage. Judge Juan Perez-Gimenez dismissed a challenge to that law in Puerto Rico in an angry ruling that strongly criticizes other judges, in which he quoted a solo dissent from the Windsor case to make his argument.
Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is “exclusively [an] opposite-sex institution . . . inextricably linked to procreation and biological kinship,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.
Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.