Last Friday, the U.S. Supreme Court agreed to review two decisions of lower federal courts that had struck down two laws preserving the definition of marriage as the union of a husband and wife.
One of the laws was the Defense of Marriage Act, passed by large bipartisan majorities of Congress and signed by President Bill Clinton in 1996. The law simply provides that when marriage and related terms are used in federal law, it will continue to mean what it has invariably meant across time and across cultures—the union of a husband and wife. Fifteen years later, the ACLU challenged this law in a sympathetic federal court. The district and circuit courts both said the law was unconstitutional because the U.S. Constitution mandates a redefinition of marriage.
The other law was Proposition 8, California’s marriage amendment. When the California Supreme Court ruled in early 2008 that the state constitution required the definition of marriage be changed to allow any two persons to marry, the people of the state reacted by approving Proposition 8, which restored the definition overturned by the court. An advocacy group with high-powered attorneys then sued in federal court, alleging this portion of the California Constitution violated the U.S. Constitution. After doing all possible to tip the scales for the challengers, a federal judge in San Francisco said the people of California had acted irrationally in retaining the millennia-old understanding of marriage. A handful of appeals court judges agreed, adding that because the voters had reversed a decision of the California court, these judges could infer an improper motive in the voters’ actions that made Proposition 8 unconstitutional.
In agreeing to review these decisions, the Supreme Court has done the right thing. It has the opportunity to rein in the rogue decisions of the lower courts reading a right to redefine marriage into the Constitution.
In our legal system, the decision made in one case becomes precedent for later decisions. If the decisions reading a mandate for marriage redefinition into the Constitution are allowed to stand, the marriage laws of every state would be open to a similar challenge.
Only the most naive observer cannot see that the end game for supporters of redefining marriage is that every state would be forced to accept the legal fiction of same-sex marriage.
The earlier decisions on DOMA and Proposition 8 are only the first steps toward this result. Now the U.S. Supreme Court has an opportunity to directly respond to this judicial adventurism and say clearly what any honest observer already knows: There is nothing in the U.S. Constitution that requires the states or the national government to abandon the social institution of marriage and to replace it with a government-created legal status meant to endorse the proposition that all adult relationships are the same.
An opportunity to do the right thing: That’s good news.