The Supreme Court’s ruling in Obergefell v. Hodges is a significant setback for all Americans who believe in the Constitution, the rule of law, democratic self-government, and marriage as the union of a man and a woman. The ruling is as clear an example of judicial activism as we’ve had in a generation. Nothing in the Constitution justified the redefinition of marriage by judges. The Court simply imposed its judgment about a policy matter that the Constitution left to the American people and their elected representatives. In doing so, it got marriage and the Constitution wrong, just as it had gotten abortion and the Constitution wrong in Roe v. Wade.
The question before the Supreme Court in Obergefell was not whether a male-female marriage policy is the best or whether government-recognized same-sex marriage is better, but only whether anything in the Constitution specifically took away the power of the people to choose their marriage policy. Yet the Court spoke almost exclusively about its “new insights” into marriage, and was virtually silent on the Constitution. That’s because it had no choice. Our Constitution is itself silent on what marriage is; We the People retain the authority to make marriage policy.
The Court claimed to show that the marriage policy that has existed in the United States for all its history is now prohibited by the Constitution. It failed to do that. As I explain in my forthcoming book, Truth Overruled: The Future of Marriage and Religious Freedom, what the Court actually did was to assume that marriage is an essentially genderless institution and then announce that the Constitution requires states to adopt that same vision of marriage in their laws.
This is all the more remarkable, given that during oral arguments on Obergefell Justice Kennedy pointed out that marriage as the union of man and woman “has been with us for millennia. And it—it’s very difficult for the Court to say, oh, well, we—we know better.” Kennedy at least pretended to be reluctant to redefine marriage judicially. Redefining marriage to include same-sex relationships has, Kennedy pointed out, only been around for ten years. And, he added, “10 years is—I don’t even know how to count the decimals when we talk about millennia.”
Even Justice Stephen Breyer noted that marriage understood as the union of man and woman “has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require states that don’t want to do it to change . . . what marriage is.” He asked: “Why cannot those states at least wait and see whether in fact doing so in the other states is or is not harmful to marriage?” And yet, he joined Kennedy’s majority opinion overruling the people—overruling the truth—and redefining marriage everywhere.
The first paragraph of the majority opinion highlights the incoherence of the ruling’s logic:
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.
But as Justice Clarence Thomas pointed out in his dissenting opinion, constitutional protections of liberty can hardly require governmental recognition. The liberty that the Constitution protects is a freedom from government interference. And gays and lesbians already enjoyed full liberty “to define and express their identity” and to exercise their “liberty by marrying someone of the same sex” in the house of worship of their choice. Yet Justice Kennedy writes the majority opinion as if governmental recognition of a relationship is a liberty right.
How did Kennedy support such a conclusion?
Kennedy starts with a paean to “the transcendent importance of marriage.” He notes that the “lifelong union of a man and a woman always has promised nobility and dignity to all persons” and that the “centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations.” He cites a variety of theological, philosophical, literary, and artistic portrayals of marriage and even admits that it “is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.” Indeed, he points out that for the states defending their marriage laws, marriage “is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.”
So why, exactly, does the US Constitution require a redefinition of marriage? Kennedy starts by claiming that the due process clause of the Fourteenth Amendment—which says that no state shall “deprive any person of life, liberty, or property, without due process of law”—requires states to recognize same-sex relationships as marriages. How? Because the fundamental liberties that the due process clause protects extend to “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” And these choices, Kennedy argues, now require not merely freedom from government coercion, but proactive government recognition. And the Court, apparently, is the one to decide which intimate choices require recognition, and when, and how much recognition each choice is due.
Kennedy is candid about how radical a departure from previous Court cases his ruling is: “It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners.” But that presumption was wrong, according to Kennedy, and he identifies four principles to “demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”
Kennedy’s Four Marriage Principles
First, “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” This entails that “two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.” We might pause here to inquire whether it is also true for all persons, whatever their number. Why Kennedy writes that “two” but not three or four “persons together can find other freedoms” is anyone’s guess. He never says. We might also wonder how “autonomy” gives rise to a right to government recognition.
Second, “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” (Note again the arbitrary addition of “two-person.”) There it is: “unlike any other” relationship. Your number-one person. Yes, Kennedy follows nearly verbatim the intense-emotional-union view of marriage that Sherif Girgis, Robert P. George, and I criticize in our book What Is Marriage? Man and Woman: A Defense. Nevertheless, Kennedy writes: “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” Consenting adult romance and care. Kennedy repeats this claim in the closing paragraph of his decision: “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”
This is among the most harmful assumptions of Kennedy’s opinion—that marriage is the only relationship that ultimately matters, that others are somehow lesser, and that the unmarried are therefore “condemned to live in loneliness.”
Third, marriage “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” So in Kennedy’s view, same-sex couples have “rights of childrearing, procreation, and education,” and these bring a right to marriage in their wake since, as a prior decision held, “the right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.”
Here Kennedy discusses children reared by same-sex couples without once acknowledging that they might want a mom and a dad. And there is no mention—at all—of children’s right to a mom and a dad, and preferably their biological mom and dad. There’s only discussion of adults’ rights to children. This section of the opinion raises troubling questions about how two people of the same sex have a right to children.
Fourth “and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.” Well, yes, marriage—a union of man and woman, husband and wife, father and mother—is a keystone of our social order, precisely because of its procreative character, which same-sex couples lack. So this is actually a point against Kennedy’s view. In response, he just asserts—without argument—that “there is no difference between same- and opposite-sex couples with respect to this principle.” As he writes, “same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.” Unless, of course, those purposes and that meaning have something to do with uniting comprehensively, creating new life, and uniting new human beings with their mother and father. Remarkably, Kennedy never once seriously engages with that argument.
Equal Protection and History
Kennedy concludes his opinion for the Court by adding, almost as an afterthought, that the equal protection clause of the Fourteenth Amendment—not just its due process clause—also gives same-sex couples a right to have the government recognize their relationships as marriages. The reasoning here is even cloudier. Kennedy writes that “The Due Process Clause and the Equal Protection Clause are connected in a profound way” and that in “any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.” The conclusion? “This interrelation of the two principles furthers our understanding of what freedom is and must become. The Court’s cases touching upon the right to marry reflect this dynamic.” That’s right, this “dynamic” tells us what freedom “must become.” If ever there was a clearer indication that the Court was legislating from the bench, I haven’t seen it. And if this passage contained an actual legal argument, I haven’t found it.
Along the way, to buttress his opinion, Kennedy cites various ways in which the social practice and legal regulation of marriage historically has changed. He mentions coverture, where “a married man and woman were treated by the State as a single, male-dominated legal entity.” He mentions bans on interracial marriage. He mentions legal regulations that placed hurdles on marriage for potential spouses if they owed child support or were in prison. Never, however, does he acknowledge that none of these practices or regulations redefined what marriage is—a comprehensive union of sexually complementary spouses.
Roberts faults Kennedy precisely for his sloppy use of this history:
In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible.
None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” . . . Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.”
The problem with the analogy to interracial marriage is that it assumes exactly what is in dispute: that sex is as irrelevant to marriage as race is. It’s clear that race has nothing to do with marriage. Racist laws kept the races apart and were designed to keep whites at the top. Marriage has everything to do with men and women, husbands and wives, mothers and fathers and their children, and that is why principle-based policy has defined marriage as the union of one man and one woman.
In sum, Chief Justice John Roberts simply observes that “the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position.” Think of a student who can’t find good support for a claim in a term paper and so adds dozens of tangential references—as if many weak arguments somehow combine to yield one strong one. “In any event,” Roberts writes, “the marriage laws at issue here do not violate the Equal Protection Clause, because”—and here he quotes Justice Sandra Day O’Connor—“distinguishing between opposite-sex and same-sex couples is rationally related to the States’ ‘legitimate state interest’ in ‘preserving the traditional institution of marriage.’”
The Role of the Court and Protecting Freedom Now
Justice Kennedy’s most basic error was a complete failure to interpret and apply the Constitution to the case at hand. He simply philosophized about what marriage should be and what freedom “must become.” Chief Justice Roberts opened his dissenting opinion by noting that the Supreme 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.” As Roberts notes later in his opinion, “There is, after all, no ‘Companionship and Understanding’ or ‘Nobility and Dignity’ Clause in the Constitution.”
America is in a time of transition. The Court has redefined marriage, and beliefs about human sexuality are changing. Will the right to dissent be protected? Will the rights of Americans to speak and act in accord with what the United States had always believed about marriage—that it’s a union of husband and a wife—be tolerated?
Most Americans say yes, they want to be a tolerant, pluralistic nation. They want peaceful coexistence. I agree with them. It’s only ideologues and activists who want to sow the seeds of disharmony by threatening those with whom they disagree with revoking their tax-exempt status, taking away their government licenses, suing them out of business, or stripping them of their legal protections.
This is why the First Amendment Defense Act is so vitally important. If passed and signed into law, this act would prohibit the federal government from ever discriminating against any citizen, charity, school, or business because they believe and act on the belief that marriage is the union of a man and a woman. Just as the pro-life movement ensured that no pro-life citizen would ever have to pay for an abortion or perform an abortion, so too must we work to ensure no one is coerced on marriage. Rather than forcing people and institutions of faith to go to court for their religious liberty, this bill would prevent the government from ever acting unjustly in the first place.
We need good policy at all levels of government. Governors have an opportunity right now to issue executive orders preventing state agencies from discriminating against or otherwise penalizing citizens and organizations that continue to believe marriage is the union of a man and a woman. State legislatures can pass laws doing the same.
The First Amendment Defense Act and its state analogues would achieve civil peace even amid disagreement by protecting pluralism and the rights of all Americans, whatever faith they may practice. Protecting conscience is good policy, and liberals committed to tolerance should embrace it.