Alea iacta est: Will the US Supreme Court re-define marriage?

The inevitable is now going to happen, and probably rather soon.  The U.S. Supreme Court has announced that it will hear four cases on appeal from the Sixth Circuit, consolidating them as one and setting a briefing schedule to be completed April 17. The cases are: Obergefell v. Hodges (Ohio), Tanco v. Haslam (Tennessee), DeBoer v. Snyder (Michigan), and Bourke v. Beshear (Kentucky).

Given the cultural war around same-sex “marriage”, it was clear that one day the Supreme Court would have to decide the matter – the question only was whether that would be sooner or later. It now must be expected that the decision will be issued shortly before the end of this year’s term, i.e. before the end of June.

Given that our blog is for a mostly non-US readership, we should explain the background of the pending cases.

The USA is a federal state, in which the Congress has legislative competences only for a set of matters that are very narrowly circumscribed by the Constitution, whereas on all other matters legislative competence lies at state level. Civil law (in general) and marriage (in particular) are state competences, so that each of the 50 states has its own legislation.

The first of the 50 states in which same-sex “marriage” was introduced was Massachusetts in 2004 – not through legislation, however, but through the decision of a state court according which the definition of marriage as (exclusively) between a man and a woman was contrary to an “equality” provision in that State’s Constitution. That was also the course of action followed in many other States. Indeed, following the surprising interpretation the Massachusetts Supreme Judicial court had given to “equality”, many States wanted to make extra sure that their laws and constitutions could not be mis-interpreted in that way and introduced statutes and constitutional amendments that explicitly defined marriage as between a man and a woman, thus ruling out the hypothesis of same-sex “marriages”. In 30 of the 50 states, such amendments were approved (sometimes rather narrowly, but often with a wide margin) by a referendum.

It was largely to no avail. In 15 of these states, these constitutional amendments were subsequently overturned by judicial decisions according which they were in contradiction to the (federal) Constitution. The basis for those judgments was the Equal Protection clause in the 14th Amendment of the US Constitution, which says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Only in one State (Minnesota, Nov. 2012) has a referendum to introduce a constitutional amendment to define marriage as a union between a man and a woman – by a narrow margin – been unsuccessful. Thus, the outcome of referenda on state-level was 30-1 against same-sex “marriage”.

Only as from 2009 have some states adopted legislative statutes to recognize same-sex “marriages”. But it can generally be said that the introduction of same-sex “marriage” in the 37 (out of 50) states where it is now legal was overwhelmingly not achieved through legislation, but through judicial activism – often against the will clearly and unambiguously expressed by an overwhelming majority of the population.

It would therefore in most cases be wrong to say that these states “have introduced” same-sex “marriages”. Instead, it was imposed upon them.

The most spectacular of these cases was California, arguably the most “gay-friendly” of all states, where in 2008 a majority of the electorate voted in favour of a constitutional amendment to define marriage as a union of a man and a woman. Yet opponents of that amendment challenged it in a Federal Court where judge Vaughn Walker (who happens to be openly homosexual) held it to be unconstitutional under the 14th Amendment of the (federal) Constituion. In clear breach of their task to defend their State’s laws against such a decision, California Attorney General Jerry Brown and Governor Arnold Schwarzenegger chose not to defend the lawsuit. The citizens’ committee that had initiated the referendum tried to bring the case to the Supreme Court, but was denied legal standing. As a consequence, the decision remained unchallenged. This opened the way for the adoption of a state law recognizing same-sex “marriages”.

The Sixth Circuit Court of Appeals, by contrast, has issued a series of decision that upheld constitutional definitions of marriage as between a man and a woman. It is these cases that the Supreme Court will now hear on appeal.

On federal level, a law was adopted in 1996 in order to forestall the legal recognition of same-sex “marriages”: the Defence of Marriage Act (DOMA). While the federal level, as mentioned, has no competence to regulate marriage, it nevertheless does happen that federal laws (for example laws concerning tax and social benefits for married couples) refer to it; in that context, DOMA sought to clarify that whenever federal legislation made reference to “marriage”, that term was to be interpreted as referring (only) to a lawful union between a man and a woman. But in United States v. Windsor, the Supreme Court with a narrow 5-4 vote held this definition to be unconstitutional under the Due Process Clause of the Fifth Amendment. Associate Justice Anthony Kennedy, representing the majority opinion,  wrote: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

What is at stake in the upcoming Supreme Court decision?

Contrary to what some (Europeans…) might expect, the question before the Court is not whether same-sex “marriages” are compatible with the US (federal) Constitution, but whether state laws (or state constitutional laws) that define marriage as a union of one man and one woman are compatible with the Constitution. This sounds – and indeed is – rather astonishing, given that the U.S Constitution is more than 200 years old, and during most of that time nobody thought that marriage could mean anything else but a union of a man and a woman with the purpose of founding a family. In other words, the assumption appears to be that for more than two centuries of American history, reaching from George Washington to George W. Bush, – and, before that, throughout the entire known history of human civilization – everybody has been wrong about marriage, but this year a panel of 9 Supreme Court Justices, possibly by a 5-4 decision, will finally correct that error.

But by outlawing the definition of marriage as a union between a man and a woman, the Supreme Court would in effect re-define marriage. And this is precisely what the dispute is about. It is not about equality, but about the definition of marriage. Already now, everybody does have the right to marry – there is no inequality or discrimination in this. What upsets the plaintiffs is not that they do not have the right to marry, but that marriage is not what they want it to be. If they have their way, the definition of marriage will be changed: it will be no more a union between a man and a woman with the apparent purpose of founding a family; instead, it will be a union of two persons – full stop. Given that two persons of the same sex cannot have children, having children cannot any more be considered the purpose of a marriage.

The question is then: does the Supreme Court have the authority to abruptly change the definition of marriage?

Quite obviously, the answer to that question is no. If the Supreme Court wants to take its own (very recent) case law seriously, it cannot change the meaning of marriage. As mentioned above, in US constitutional law defining marriage is a State competence, not a federal one. But the Supreme Court itself is a federal institution, and in -re-defining marriage it would do precisely what the Constitution says the federal level can’t do.

As Mgr. Salvatore Cordileone, Catholic Archbishop of San Francisco and head of the US Bishops’ Conference’s Subcommittee for the Promotion and Defense of Marriage writes:

“It’s hard to imagine how the essential meaning of marriage as between the two sexes, understood in our nation for over 200 years, and consistent with every society throughout all of human history, could be declared illegal. To those arguing for a constitutional redefinition of marriage, one must ask: when did the Constitution suddenly mandate a novel and unfounded definition of marriage? To ask such a question is not a judgment on anyone. It is a matter of justice and truth. The central issue at stake is: what is marriage? The answer is: a bond which unites a man and a woman to each other and to any children who come from their union. Only a man and a woman can unite their bodies in a way that creates a new human being. Marriage is thus a unique and beautiful reality which a society respects to its benefit or ignores to its peril.”

From a merely legal point of view, the outcome of the case should be clear. But alas, the decision is unlikely to be made on merely legal grounds. While four of the nine Supreme Court Justices (Roberts, Scalia, Thomas, and Alito) can be trusted to base their decision on sound legal reasoning, the remaining five Justices (Kennedy, Breyer, Bader Ginsburg, Sotomayor, and Kagan) have already on past occasions demonstrated that they view themselves not as guardians of the Constitution, but as innovators. The Windsor decision, based on rather flimsy reasoning, betrays a strong desire of these five activists to impose same-sex “marriage” at all costs, and with no concern for the possible consequences.

The position of the Obama administration is clear. Attorney General Eric Holder has announced that the Department of Justice would file an amicus brief in the case asking the court to “make marriage equality a reality for all Americans”.

Will the Supreme Court Decision be the end of the story? Probably not. Certainly, if the Court holds the statutes of the four states concerned to be unconstitutional, the only constitutional way to re-introduce into the US legal system a correct and sane understanding of marriage would be through an amendment of the US Constitution (which by definition cannot be “unconstitutional”). The other option would be to wait for a moment where the composition of the Supreme Court will have changed, and then seek a reversal of the decision. By contrast, if the Supreme Court finds no unconstitutionality, “gay rights” activists may nevertheless seek to push for new laws at state level to introduce same-sex “marriage”.

The issue will thus continue to be divisive. Roe vs. Wade did not settle the issue of abortion; instead, America is more pro-life today than it was back then. In the same way, defenders of marriage and family will continue to fight bravely and creatively, whatever the Supreme Court may decide. A law or a court decision decreeing that two persons of the same sex can “marry” would be like a law decreeing that the world is flat. And a decision obliging citizens to acknowledge the “equality” of sodomy and the marriage of a man and a woman would be like obliging people to acknowledge that two plus two is three.