The Supreme Court Should Leave Marriage Alone

Same-sex marriage is a compelling issue for many people on both sides of the question. Public support for traditional marriage eroded rapidly in the past two years, while nationwide support for same-sex marriage is at an all-time high.

For the first time, several states have passed voter referendums allowing same sex marriage, politicians are moving to endorse same-sex marriage and there’s even talk about whether or not conservative Christians and the Republican Party should abandon opposition to it.

Meanwhile, lower courts have struck down the federal Defense of Marriage Act and Proposition 8, both of which were designed to protect traditional marriage.

It is at this juncture that the United States Supreme Court has announced that it will hear challenges to these lower court rulings on DOMA and Proposition 8. Since lower courts had struck down the two laws, the Supreme Court could have allowed those rulings to stand by simply not hearing the challenges. For this reason, many people who favor traditional marriage, including those quoted in the CNA/EWTN article excerpted below, are hopeful about what the eventual Supreme Court ruling might mean. At the same time, supporters of same-sex marriage are voicing concerns that the Supreme Court might overturn lower court rulings and let the laws stand.

I believe it would be a mistake for the Supreme Court to step in at this juncture and federalize marriage. I also think it would be a mistake to define homosexual people as a protected class under the 14th Amendment. I would have this opinion even if I supported same-sex marriage.

It appears to me that the people of this country are in the process of working through a decision on this issue of their own and they are using the ballot box to do it. Even though I do not support same-sex marriage, I know that the voters in the states who legalized it this fall were acting within their rights to do so. I also believe that this is almost always the best way for social change to come about.

My answer to the question of defining homosexual people as a protected class of citizens under the 14th Amendment, is that I do not think this is necessary. Discrimination against homosexuals is rapidly going away without this drastic measure and all its unintended consequences.

One of the most damaging decisions the Supreme Court ever made was in a situation analogous to this one. Roe v Wade came at a time when the various states were liberalizing their abortion laws and public support for legal abortion was on the ascendant. By stepping in and federalizing something that had always been under the control of the states, the Court stopped this normal Democratic process in mid act. What happened instead is that the Court, rather than ending the discussion, radicalized it and set this country on a destructive course of increasingly polarized public debate and politics which continues to this day.

Of course, my opinion about what the Court should do doesn’t mean a thing, just as the opinions of both those who favor same-sex marriage and those who oppose it don’t mean a thing. The question about these two laws is now in the hands of seven people and they can do pretty much whatever they want with it. The Court has the freedom to rule in a narrow fashion that only affects these two statutes, or it can make a whole new Constitutional definition of marriage in whatever fashion four of these seven people want.

We the people have very little to say about what happens at the Supreme Court. And that is why I think that everyone on both sides of this debate should hope that they don’t go off on a law-making binge. I hope that they rule narrowly instead.

The CNA/EWTN article discussing reactions of traditional marriage supporters to the Court’s decision to hear these two cases reads in part:

Washington D.C., Dec 7, 2012 / 04:13 pm (CNA/EWTN News).- Supporters of marriage and family welcomed the Supreme Court’s announcement that it will review both state and federal cases about the definition of marriage in the coming months.

“The U.S. Supreme Court’s decision to hear these cases is a significant moment for our nation,” said Archbishop Salvatore J. Cordileone of San Francisco, who leads the U.S. bishops’ Subcommittee for the Promotion and Defense of Marriage.

“Marriage is the foundation of a just society, as it protects the most vulnerable among us, children,” he said in a Dec. 7 statement. “It is the only institution that unites children with their mothers and fathers together.”

The archbishop said that he is praying that the court will be “guided by truth and justice” in order to affirm the true meaning and purpose of marriage, written in human nature as the union of one man and one woman.

On Dec. 7, the U.S. Supreme Court announced that it will hear two cases regarding the definition of marriage in the next year.

A federal case, Windsor v. United States, involves a challenge to the Defense of Marriage Act, a 1996 law passed with overwhelming bilateral support in Congress and signed by President Bill Clinton. The case challenges a section of the law that defines marriage as the union of one man and one woman for federal policies.

A second case, Hollingsworth v. Perry, concerns Proposition 8, a constitutional amendment adopted by California voters in 2008 to protect the definition of marriage as the union of one man and one woman after the state Supreme Court ruled that gay unions must be recognized as marriages.

Critics of the laws argue that they amount to unjust discrimination against gay couples and an unconstitutional violation of the equal protection clause. Proponents contend that the government has a legitimate interest in recognizing the union of man and woman because it is the fundamental building block of society and plays a critical role in bringing up the next generation.

While lower courts have struck down both laws, marriage advocates say they see hope in a Supreme Court ruling. (Read more here.)

  • Bill

    What a hetero-supermacist, piggish view of humanity, this Rebecca Hamilton embodies.

    • Ted Seeber

      What a homo-supremicist, homopathic view of humanity you keep putting forth. Why would you ever abandon The Way of Life for The Way of Suicide?

  • Bob Seidensticker

    Why should the Supremes stay out of this issue? They didn’t stay out in 1967 in Loving v. Virginia, when marriage in some states was defined as between a man and a woman of the same race. I think we can agree that that was a good move.

    It looks like same-sex marriage will seem as bizarre in 20 years as mixed-race marriage is today.

    Christianity Supports Same-Sex Marriage

    • Rebecca Hamilton

      I didn’t say they should say out of it Bob. I said I hope they don’t make new law and federalize marriage. They could go either way, you know. They might rule that marriage is between one man and one woman. I’m suggesting they let the electoral process work.

      • Bob Seidensticker

        I guess I’m still unclear why the Supremes made sense for the issue of mixed-race marriage but not for same-sex marriage. I was married in NY, and that marriage was recognized in the many states that I’ve lived in since. Isn’t this what we want for all marriages?

        But as an aside, let me clarifiy my last comment: “It looks like same-sex marriage will seem as bizarre in 20 years as mixed-race marriage is today.” That’s not to say that some don’t see mixed-race marriage as bizarre today!

        The Camels With Hammers blog has a post showing a sad example here.

        • SteveP

          Bob: the question, in 1967, was not a question of Virginia recognizing the Loving’s marriage certificate. The lawsuit challenged Virginia’s Racial Integrity Act. Note that the case, Loving v. Virginia, makes a strong connection between marriage and children.

    • SteveP

      Bob, the question in 1967 was not marriage. Rather anti-miscegenation laws were eugenic programs to ensure racial purity. It was illegal for a non-white person and a white person to mix. What Loving v. Virginia asserts is that a man and a woman have the right to found a family — the right to breed — the right to marry.

  • Dave

    Once marriage is degraded to the point where it is seen as a way to get state/federal benefits for any people that want to be sexually intimate for a certain limited period of time, it’s pretty much useless anyway. It used to be that marriage was understood as being privileged by the state because those families were providing the state an irreplaceable benefit, that of raising the future citizens of the state in a stable, loving way. Those days, when a grain of common sense remained in our society, are long gone now.

    Now…we are giving out state benefits for what? Just because two people “love” each other? That’s ludicrous, just financially speaking, in a time when we really can’t afford to waste money. People just don’t know how to think any more.

    • Chuck Anziulewicz

      If love and commitment have nothing to do with marriage, and the only reason to provide support for married couples is procreation, what business does the government have in providing marriage licenses to couples who are either unwilling or unable to have children?

      Fact is, the issue of procreation is irrelevant, especially when human population growth is becoming increasingly unsustainable. Ask any Straight couple why they choose to marry. Their answer will not be, “We want to get married so that we can have sex and make babies!” That would be absurd, since couples do not need to marry to make babies, nor is the ability of even desire to make babies a prerequisite for obtaining a marriage license.

      No, the reason couples choose to marry is to make a solemn declaration before friends and family members that they wish to make a commitment to one another’s happiness, health, and well-being, to the exclusion of all others. Those friends and family members will subsequently act as a force of encouragement for that couple to hold fast to their vows.

      THAT’S what makes marriage a good thing, whether the couple in question is Straight OR Gay.

      • Rebecca Hamilton

        I do not want to see the legal definition of marriage changed. I think it should stay that marriage is between one man and one woman. However I do think that all citizens have the clear right to petition the courts and work for change through the electoral process. That is what is happening concerning gay marriage, and I support the activity, even though I oppose its aim.

        That’s a little bit like saying that while I disagree with what you’re saying, I will fight to the death for your right to say it. I don’t agree with what you’re trying to accomplish in your efforts to change the legal definition of marriage, but I support your right as an American to work through the process to try to accomplish this.

        My comments here refer specifically to the fact that the Supreme Court has agreed to hear two laws that were designed to either limit the definition of marriage to one man, one woman (Prop 8) or to allow the functioning of diverse statutes concerning the legal definition of marriage within the states (DOMA.)

        What I said, as opposed to your angry interpretations of what you seem to think I said, is that the Supreme Court would do better (in my opinion) to let the system work and not jump in there with a ruling that makes new law and takes the question of marriage away from the states. I remind you that if the Court choses to make new law in this matter, it might just as easily enshrine the traditional definition of marriage in the Constitution as what you want. Given the polarized structure of the Court today, any ruling is basically a crap shoot.

      • Dave

        I never said that love and commitment have nothing to do with marriage. I do believe that they don’t have much to do with the GOVERNMENT’S INTEREST in marriage, except insofar as they ensure the stable, loving environment for the next generation of citizens to be raised.

        It isn’t the government’s job (contrary to what people seem to think today, where it is considered to be the government’s job to micromanage everything) to make some kind of fertility test before giving marriage benefits. For one thing, those tests aren’t 100% correct. As long as the pair is a life-giving pair (i.e. a man and a woman), that’s good enough. In the past, all of this was assumed, as very nearly all couples wanted children.

        Let me ask you this: why do you think the government should give a couple (or maybe any group of people – after all it is discriminatory to limit it to those old-fashioned prudes who think it should be limited to TWO people) substantial financial benefits just for making a commitment to each other?

        By the way, if you think new human population is a bad thing, you are sorely mistaken. Societies (especially societies with huge government entitlement programs) cannot survive without a healthy birth rate, as we are seeing in Europe now, and as we will see here in the US increasingly. Many countries with low birth rates are making laws to greatly incentivize having children, as they see the writing on the wall. It’s probably too late, but at least they are trying.

    • Rebecca Hamilton

      Excellent point Dave.

  • Chuck Anziulewicz

    “I also think it would be a mistake to include homosexual people under the 14th Amendment Equal Protection Clause.”

    Well I have to credit you for being honest. I always thought that, unless the Constitution only applied to people who were Straight (i.e. heterosexual), there was simply no justification for denying law-abiding, taxpaying Gay couples the same legal benefits and protections that Straight couples have always taken for granted.

    Rebecca Hamilton says the 14th Amendment guarantee of “equal protection under the law” SHOULD NOT apply to Gay people. What can I possibly say in reply … other than express my dismay that people like Ms. Hamilton DO feel like Gay Americans are inferior, second-class citizens.

    • Rebecca Hamilton

      That isn’t what I said Chuck. I said that I didn’t think it was necessary to define gay people as a protected class of citizens under the 14th Amendment. What I meant by that is that it’s not necessary to define them as a protected class of citizens to guarantee their rights. The blatant discrimination and violence which homosexuals have suffered is being handled in other, (and I think better) ways than this. The only group of people who have ever been defined as a separate class of citizens in this way are African Americans. I am not saying that any citizen, including gay citizens, are not subject to equal protection under the laws.

      I emphatically do not feel that homosexuals are inferior, second-class citizens.

      • Rebecca Hamilton

        Chuck, I owe you an apology. I re-read what I wrote and I wasn’t as clear as I had thought about what I was saying. I re-worded it to make it more clear. You were justified in coming to the conclusion that I didn’t support homosexuals being under equal protection the way I worded it before. That’s not what I meant, but it’s how it could have been interpreted.

  • Sus

    Same sex marriage can help traditional marriage. The more loving couples there are to be an example, the better.

    • Rebecca Hamilton

      That’s a pretty thought Sus. But I don’t think you’re right.

    • SteveP

      Sus – it has been 44 years since the Summer of Love, 45 years since “All you need is Love.” What example do you think will become apparent which has not already been proffered?

      • Sus

        I didn’t mean hippie “free love”. When I said loving couples, I meant couples that stay together, no infidelity and have good marriages in general.

        • SteveP

          Sus, I am still confused. The Stonewall riots are generally considered the end of the closet. Men and women who self-identify as SSA might have been an example to emulate in the past forty years but have not been exemplars of stable relationships. To wit, marriage, among those who can legally marry, is an optional accoutrement. How is it that the SC striking down DOMA or Prop. 8 will create stable interpersonal relationships between men and women, a.k.a. marriage?

          • Sus

            I definitely didn’t express myself well here. Here’s my original comment: “Same sex marriage can help traditional marriage. The more loving couples there are to be an example, the better.”

            What I meant to say was that if SSM was recognized nationally, the pool of people in couples would be larger. Therefore, there would be more relationships as examples to young people.

            I don’t think that SSM will hurt traditional marriage more than it has already been hurt by people that don’t take their vows seriously.

            The people that I know in homosexual relationships have been together for 34, 20, 15 years.

            I have another friend who was with his partner for 9 years until he died of cancer. Watching him nurse his partner was exactly like watching a man nurse his wife through a terminal illness. Afterwards, his partner’s parents sued him for 1/2 of their house and assets despite what his will said. They didn’t win but if they were a man and a woman married, a law suit wouldn’t have been possible. Things like this is why it’s important that same sex couples have the same rights as I do.

            • SteveP

              Sus, thank you for taking the time to expand your thought. In appreciation I’ll leave be other than a mention that marriage-as-inheritance is not unassailable in Probate Court as Marshall v. Marshall demonstrates.

  • Bill S

    I don’t believe that the Constitutional rights of gays should be determined by popular vote at the state level as they were in four states this election and as they were under California Proposition 8. I believe that the Supreme Court is the appropriate authority for making that determination.

    Hypothetically, what if everyone hated gays and voted against gay marriage? Wouldn’t it be up to the Supreme Court to say: “we don’t care if everyone hates them. They are not going to be discriminated against”.

    • Rebecca Hamilton

      Bill, you’re making several false assumptions. First, you are assuming that what we are talking about here with the question of marriage is a Constitutional right, which, for over 200 years, it has not been. It is a state’s right. Second, you are assuming that the only motivation anyone would have for supporting traditional marriage is a hatred of gay people. This is not true. Third you are assuming that the Supreme Court is your mother, and that when they rule, they can say things like “we don’t care if everyone hates them. They are not going to be discriminated against”. That is not how things work Bill.

      I’ve said this repeatedly. This country and homosexuals will all be much better off in the long run if the Court rules narrowly and lets the system continue to work. So far, every argument I’ve seen to the contrary has been emotional blather based on inaccurate understandings of what the Court does and how these things work out in real life.

  • Bill S

    The 14th amendment states the following:

    “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    California’s Proposition 8 violates the 14th amendment since marriage is a privilege. I don’t know about DOMA or how it would be overturned. The Constitution or its amendments must contain some language somewhere that would make DOMA unconstitutional. Maybe not.

    • Rebecca Hamilton

      Bill, go back and read the Court decisions vis a vis the 14th Amendment.

      By your definition, ANYTHING would fall under the 14th Amendment.

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