Marriage, Self-Government, and Civility


Those suing to overturn state marriage laws are not merely asking the Court to recognize a new right. They are asking the Court to declare that the Constitution removes this issue from democratic deliberation.

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When state citizens determine the shape of civil marriage, they reflect on an institution more fundamental to our civilization than any other. In recent years, some states have concluded that marriage should include same-sex couples. Accordingly, they have altered their marriage laws through the democratic process. Others have concluded that marriage has always been, and should remain, a man-woman relationship. They have accordingly declined to alter their marriage laws.

In both cases, these citizens have acted upon what the Supreme Court calls their “considered perspective on the historical roots of the institution of marriage” (United States v. Windsor). Our federal system accommodates Americans on both sides of this profound issue. As Justice Oliver Wendell Holmes wrote over a century ago, our “Constitution . . . is made for people of fundamentally differing views.”

Yet pending before the Supreme Court are four cases that could impose on every state a novel and widely contested definition of marriage. The plaintiffs are same-sex couples who assert that the Fourteenth Amendment removes same-sex marriage from democratic deliberation and compels all fifty states to adopt it. They are profoundly mistaken. The Constitution takes no sides on this issue, and so leaves it up to the states.

The fact that Americans have reached different conclusions about same-sex marriage is not a sign of a constitutional crisis that requires the Supreme Court to step in. On the contrary, it’s a sign that our Constitution is working the way it should. In our federal system, this issue must be resolved at the state level. To resolve it through federal judicial decree would demean the democratic process, marginalize the views of millions of Americans, and do incalculable damage to our national civic life.

Dignity and Self-Government

The structure of our federal Constitution is premised on state sovereignty. This may seem obvious, but it was not during the Constitution’s ratification. For instance, Alexander Hamilton needed to assure the readers of the Federalist papers that

The proposed constitution, so far from implying an abolition of the state governments, makes them constituent parts of the national sovereignty … and leaves in their possession certain exclusive, and very important, portions of the sovereign power.

The Supreme Court has confirmed Hamilton’s promise. The Constitution does not make the states “political subdivisions of the United States” (New York v. United States), nor “mere provinces or political corporations” (Alden v. Maine). Rather, the Constitution “specifically recognizes the States as sovereign entities” (Alden).

One might think multiplying sovereigns would multiply threats to our freedom. Paradoxically, the opposite is true: it means we have more freedom, not less. Government power is diffused, not concentrated. When the national government respects the authorities of state governments, people can more effectively shape their local communities. Perhaps most importantly, states can disagree on important matters. This is why Justice Brandeis called the states “laboratories of democracy for social and economic experiment.”

Family Law Belongs to the States

Among the many areas of law reserved to the states, none is more central than family law. In Ankenbrandt v. Richards, the Court clearly acknowledged that “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” Just two years ago, in Windsor, the Court confirmed that “The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations.”

When the Supreme Court decided Windsor in June 2013, twelve states had democratically adopted same-sex marriage. Whether one sees this development as encouraging or alarming, it is obviously brand new. No state recognized same-sex marriage until Massachusetts in 2003; no country in the world did until the Netherlands in 2000.

The step from the older to the newer version of marriage is a momentous one. As Judge Jeffrey Sutton wrote for the Sixth Circuit, the concept of marriage as a man-woman institution is “measured in millennia, not centuries or decades,” and “until recently [it] had been adopted by all governments and major religions of the world.” In Windsor, the Supreme Court similarly observed that “marriage between a man and a woman had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” Thus, when state citizens decide whether to adopt same-sex marriage, one thing appears inescapably true: they are exercising their sovereign authority over the basic architecture of family law.

Only from this perspective can we see what is truly at stake in the same-sex marriage cases. The plaintiffs are not merely asking the Court to recognize a new right. Instead, they are asking the Court to declare that the Constitution removes this issue from democratic deliberation. It is often asked by proponents of same-sex marriage what “harms” would flow from judicial recognition of their claims. From the perspective of democratic self-government, those harms would be severe, unavoidable, and irreversible.

State Authority and the Windsor Decision

The first casualty of a decision constitutionalizing same-sex marriage would be the coherence of the Supreme Court’s own precedent, which just two terms ago emphatically reaffirmed the authority of states to decide this very question on the basis of democratic deliberation.

In Windsor, the Court invalidated the federal marriage definition in the Defense of Marriage Act (“DOMA”) because it undermined New York’s authority to extend marriage to same-sex couples. The Court left no doubt that state authority—what the Court called the states’ “historic and essential authority to define the marital relation”—was the hinge on which Windsor turned. As the Court put it, DOMA’s federal definition wrongly sought “to influence or interfere with state sovereign choices about who may be married.”

Ironically, the plaintiffs ground their arguments for overturning state marriage laws on Windsor itself. They can do so, however, only by maintaining a studied silence about Windsor’s affirmation of state authority over marriage. Their reticence is unsurprising: as federal district judge Juan Pérez-Giménez acidly remarked, “It takes inexplicable contortions of the mind . . . to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.”

Mocking Democracy

A decision constitutionalizing this issue would also sweep away the value of the democratic process in states that have decided to confer marriage on same-sex couples. Over the past decade, proponents of same-sex marriage have achieved remarkable successes by convincing their fellow citizens that they have the better argument about the meaning of marriage. Despite numbering less than 4 percent of the population, in some five years they have used the political process to change marriage laws in Delaware, Hawaii, Illinois, Maine, Maryland, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington. That is a stunning feat, given that the man-woman definition had been so ingrained in American culture.

One should not lightly conclude that these victories arose merely from savvy politics. To the contrary, removing the man-woman definition from marriage may signify a cultural shift towards a new vision of marriage in those states. Take New York, for example, which adopted same-sex marriage in 2011. Windsor viewed this as no mere alteration of a statute, but as an epochal event. What New Yorkers did, the Court explained, demanded “both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” A decision constitutionalizing same-sex marriage would obliterate the significance of that remarkable democratic victory.

It would also make nonsense of Windsor itself. Windsor, after all, praised New Yorkers for engaging in a “statewide deliberative process that enabled [them] to discuss and weigh arguments for and against same-sex marriage.” But deciding that the Constitution dictates adoption of same-sex marriage would mock that democratic process. On that view, New Yorkers were not adopting a new perspective on marriage, but simply correcting a defect in their marriage laws. Windsor, however, did not praise New Yorkers for engaging in a debate with only one correct constitutional answer.

Poisoning Debate

A decision constitutionalizing same-sex marriage would discount the democratic process in an even more troubling way. It would send the message that state citizens are incapable of constructively resolving the issue. That would flout Windsor’s affirmation of democratic consensus, and it would be false to the Court’s recent teaching in Schuette v. Coalition to Defend Affirmative Action.

In Schuette, the Court rejected an equal protection challenge to a Michigan constitutional amendment forbidding affirmative action in public universities. Recognizing that the amendment reflected “the national dialogue regarding the wisdom and practicality of [affirmative action],” Schuette held that “courts may not disempower the voters from choosing which path to follow.” “It is demeaning to the democratic process,” Schuette explained, “to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

What Schuette taught about affirmative action speaks directly to same-sex marriage. As with affirmative action, there is a “national dialogue” regarding same-sex marriage, and “courts may not disempower the voters from choosing which path to follow.” As with affirmative action, it would be “demeaning to the democratic process to presume . . . voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

Regrettably, Schuette’s warning against demeaning the democratic process has proven prophetic. In the wave of post-Windsor decisions striking down state marriage laws, citizens who do not support same-sex marriage have been called “barking crowds” and compared to those who “believed that racial mixing was just as unnatural and antithetical to marriage as . . . homosexuality.” They have been told that their marriage laws have “the same result” as interracial marriage bans. Their defense of marriage as grounded in the biological reality of procreation has been mocked by a judge who summed it up in this way: “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry.” They have been lectured that their views are “callous and cruel” and should be “discard[ed] into the ash heap of history.”

This unsettling trend is also reflected in the lower courts’ frequent reliance on Loving v. Virginia. Courts have repeatedly linked the white supremacist laws correctly invalidated in Loving with man-woman marriage laws. That is a troubling misuse of a landmark decision. Loving rightly invalidated anti-miscegenation laws, racist relics of slavery that struck at the heart of the Fourteenth Amendment. Those odious laws have nothing—nothing—to do with same-sex marriage. While the Fourteenth Amendment outlaws racial discrimination, the Supreme Court recognized in Windsor that the Constitution leaves citizens free “to discuss and weigh arguments for and against same-sex marriage.” It is laughable to suppose that Windsor would have praised New Yorkers’ deliberations for and against same-sex marriage if a refusal to recognize same-sex marriage were equivalent to racism.

Protecting Civic Peace

When state citizens decline to adopt same-sex marriage, they are not voting to roll back the Civil Rights Movement. That insinuation is degrading to millions of Americans, and the Supreme Court should roundly denounce it. Only that will expunge the corrosive premise so many lower court opinions have eagerly adopted. Those decisions, both in rhetoric and reasoning, forget Justice Holmes’s insight that our “Constitution . . . is made for people of fundamentally differing views.”

Many Americans believe marriage should extend to same-sex relationships. Many do not. In the name of civic peace, the Supreme Court must do what the lower courts have largely failed to do—treat Americans holding opposing views on this question as honorable participants in a debate over a question of profound civic importance.

But a decision from the Court declaring a constitutional right to same-sex marriage would have the opposite effect. Inevitably, it would validate in the public mind the numerous decisions that have characterized this issue, not as a debate between good people on either side, but as a battle between those who love individual freedom and those who cling blindly to tradition. That would do incalculable damage to our civic life in this country.

How much better for this issue to play out, state by state, with citizens engaged in urgent but respectful disagreement. That is precisely what was happening before the courts began to intervene two years ago. The Supreme Court should let that process of self-governance continue.

Kyle Duncan is a lawyer in private practice in Washington, DC. This article is adapted from an amicus brief he filed in the same-sex marriage cases on behalf of fifteen States.

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