Marriage of "Supreme" Importance

Marriage will once again be front and center on the docket of the Supreme Court of the United States, as it announced Friday afternoon that it will hear cases dealing with state marriage amendments from Ohio, Kentucky, Michigan and Tennessee in April.  A decision can be expected on that last day of the High Court's session in the summer. At issue is the right of a state to define marriage in its constitution and decide whether to recognize same-sex marriages performed in other states.  Ultimately, the issue will be whether states can regulate any aspect of marriage as part of state public policy.

In the article "Federalism or Extreme Makeover of State Domestic Regulations Power?  The Rules and the Rhetoric of Windsor (and Perry)," by Elizabeth Oklevitch and me (available for a free download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093), we discuss at length the opinion of the Supreme Court of the United States in United States v. Windsor as express in its affirmation of the right of states to regulate family law.  Windsor affirmed state power at least twenty-nine times, while simultaneously repudiating the federal definition of marriage.  At the same time, the California Proposition 8 case of Hollingsworth v. Perry provided an opportunity for the High Court to endorse democratic involvement in the process of state regulation of family law, but there it ruled that citizens had no standing to represent their own process in the voter-approved state referendum defining marriage for California. Thus, the characterization of federalism in Windsor conflicted with the actual outcome of Perry in the summer of 2013. In light of that apparent contradiction, we argued that “the traditional power of States to define domestic relations” mandates that the federal government should refrain from intervening in marriage entry regulation.


Now the federal Circuit Courts have arrived at conflicting conclusions regarding a state's right to define marriage in domestic relations laws, and conflicting notions as to how full faith and credit must be applied to those rulings when new expanding definitions severely offend a state's strong public policy favoring dual gender marriage.   The Supreme Court of the United States will now step in to settle the conflict, and this time it should simply restate its own rules and dicta from Windsor and leave the regulation of marriage to state law.


In Windsor, a couple of the Justices already predicted April's coming arguments, but with different conclusions.  Chief Justice Roberts expressed confidence that “state power to define marriage, state sovereignty, and state diversity,” federalism-based arguments relied on by the Court in reaching its determination, will support state choices to recognize only heterosexual marriage in the future. (Windsor at 2697, Roberts, J., dissenting).  In contrast, Justice Scalia’s dissenting opinion exudes far less optimism.  Scalia saw the Court’s seven-page tribute to states’ power to define marriage as a farce, and speculated that the majority relied on the federalism rhetoric to shield the reality that it laid the groundwork to extend its holding to state laws excluding same-sex marriage at a later date. (Windsor at 2692, Scalia, J., dissenting).  Distrusting the Court’s assertion that “[t]his opinion and its holding are confined” to state-sanctioned marriages, Scalia discussed how Lawrence v. Texas, the case finding a right to private consensual sodomy, was expanded to justify Windsor even though Justice Kennedy in Lawrence explicitly said its holding was not related to any official recognition of homosexual relationships.  These observations and predictions by the Justices themselves point to state regulation of marriage and family matters as standing on thin rhetorical ice with the majority.


Justification for expansion of rights never envisioned by the United States Constitution, regardless of the outcome of April's arguments, should encourage those who understand the time-honored definition of marriage as the crux of civilization to stand firm in personal belief. Russell Moore, President of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, the moral and public policy agency of the nation’s largest Protestant denomination, writes this about the importance of the marriage case at the High Court in his January 16 post entitled :The Supreme Court and Same-Sex Marriage: Why This Matters for the Church:

"The Supreme Court announced today that [it is] taking cases on whether same-sex marriage is a constitutional right. Effectively, this means that the highest court in the land will decide, this year, whether marriage, as defined for thousands of years, will exist in our country any longer. ... [T]his is not something we should shrug off. Marriage isn’t merely a matter of personal import or private behavior. States recognize marriage for a reason, and that reason is that sexuality between a man and a woman can, and often does, result in children. The state has an interest in seeing to it that, wherever possible, every child has both a mother and a father. (See Rethinking Mom and Dad, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462112 .)   The state doesn’t create this reality. It merely recognizes it, and attempts to hold husbands and wives, fathers and mothers, accountable to their vows and to their responsibilities. In every aspect of the Sexual Revolution, from the divorce culture to cohabitation to casual sex to the abortion revolution, children have borne the burden.  If the Court finds a constitutional right to same-sex marriage, we will have a generation of confusion about what marriage is, and why it matters. Beyond that, we have already seen that the Sexual Revolution isn’t content to move forward into bedrooms and dinner tables. The Sexual Revolution wants to silence dissent. The religious liberty concerns we are grappling with already will only accelerate.  We should pray that the Supreme Court does not take upon itself a power it doesn’t have: to redefine an institution that wasn’t created by government in the first place. But we shouldn’t wring our hands in fear, or clench our fists in outrage."


Marriage between a man and a woman protects children and strengthens society.  The right of a state to define marriage in its own state constitution and domestic regulations and to decide whether to recognize same-sex marriages performed in other states fosters family strength.  (Read more about that at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427462.) It is at the heart of democracy and at the heart of strong state policy.  The Supreme Court could very likely rule, however, that all states must follow laws endorsing marriage expansion to same-sex couples.  That ruling would in turn inevitably advance marriage expansion away from incest restrictions, toward the weakening and removal of age restrictions on marriage, and to the elimination of monogamous requirements. 


Change to family and society as a consequence of marriage expansion is inevitable, but the specifics of that change are unpredictable.  As Justice Alito stated in Windsor, “change in family structure and in the popular understanding of marriage and the family can have profound effects,” and yet, if acceptance of same-sex marriage becomes widespread, “[t]he long-term consequences of this change are not now known and are unlikely to be ascertained for some time to come.” (Windsor at 2715, Alto, J., dissenting).   It is also generally recognized that continued expansion of marriage will affect marriage as an institution, either strengthening or weakening it.  Indeed, advocates on both sides of the same-sex marriage debate maintain that marriage expansion undermines the institution of marriage. (See fn 150, Oklevitch & Kohm.) 


If the Supreme Court rules to require all states to recognize same-sex marriage the exact way marriage will be affected is uncertain, yet it will unquestionably be altered, and the reverberations of those changes will be felt throughout society for generations.

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