This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.
Last week’s decision of the U.S. Court of Appeals for the Sixth Circuit has thrown a wrench in the “inevitability” of a national mandate of gender-neutral marriage. The conventional wisdom after the U.S. Supreme Court declined to hear the marriage cases in Utah and a handful of other states was that the issue was over. The confident prediction was of the eventual triumph of the (misplaced) idea that the U.S. Constitution prohibits states from recognizing in their laws that marriage is the union of a complementary set of a wife and a husband.
Now that the federal courts in at least one region of the country are bound to respect voters’ beliefs about the meaning of marriage, there will likely be an attempt to get the Supreme Court to force all the states to get in line. But this split in the Appeals Courts also provides the Supreme Court an opportunity to do the right thing and allow marriage to reflect the principle that children deserve to be raised by a married mother and father.
The Sixth Circuit majority’s conclusion about marriage is important. The way it reached that conclusion is also critical and serves as an example of restraint and adherence to the Constitution that serves as a model for other courts.
Consider this analogy from the decision:
All Justices, past and present, start their assessment of a case about the meaning of a constitutional provision by looking at how the provision was understood by the people who ratified it. If we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm of constitutional interpretation—that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly—to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur—unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so.
This approach is powerfully protective of liberty. Rather than assuming major social controversies should be resolved by judges second-guessing the normal political process, in the absence of clear constitutional authority to do so, this approach takes seriously the written-down nature of the Constitution. Without an anchor in the text and original meaning of the Constitution, judges may invent (for however noble a motive) interpretations of the document that have the effect of “constitutionalizing” their own views of what makes “enlightened” laws. Perhaps their decisions will be accepted by others and perhaps not. But, in the process, citizens are taught, in Professor Robert Nagel’s words, “the scary lesson that anything can be done with words” as the Court acts “like some lumbering bully, to disrupt social norms and practices at its pleasure.”
The Framers knew changes might be desirable and necessary and established a difficult but not insurmountable way to change the terms of the Constitutional charter.
The amendment process ensures deliberation by creating a slow process, requiring broader support for the change than would be required for simple legislation and by ensuring ratification by the citizens—the very ones who will be affected by the change.
In the Sixth Circuit decision, one judge dissents and calls the amendment process impractical. If “impractical” means “difficult,” then, yes, that’s precisely the point. Having a fundamental charter that’s consistent and predictable is the very essence of the rule of law. Preventing novel changes to the charter being made on a whim or by handful of appointed officials is a feature, not a bug of our constitutional system.
For Sutherland Institute, I’m Dave Buer. Thanks for listening.
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Below are some further highlights from the court’s decision:
What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty- assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.
Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?
Applied here, this approach permits today’s marriage laws to stand until the democratic processes say they should stand no more. From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning that the Fourteenth Amendment permits, though it does not require, States to define marriage in that way.
A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States. Hesitant, yes; but still a rational basis, some rational basis, must exist for the definition. What is it? Two at a minimum suffice to meet this low bar. One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.
To take another rational explanation for the decision of many States not to expand the definition of marriage, a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries. That is not preserving tradition for its own sake. No one here claims that the States’ original definition of marriage was unconstitutional when enacted. The plaintiffs’ claim is that the States have acted irrationally in standing by the traditional definition in the face of changing social mores. Yet one of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time.
Consider how plaintiffs’ love-and-commitment definition of marriage would fare under their own rational basis test. Their definition does too much because it fails to account for the reality that no State in the country requires couples, whether gay or straight, to be in love. Their definition does too little because it fails to account for plural marriages, where there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point. What they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage. The predicament does not end there. No State is free of marriage policies that go too far in some directions and not far enough in others, making all of them vulnerable—if the claimants’ theory of rational basis review prevails.
Neither was the decision to place the definition of marriage in a State’s constitution unusual, nor did it otherwise convey the kind of malice or unthinking prejudice the Constitution prohibits. Nineteen States did the same thing during that period. Human Rights Campaign Found., Equality from State to State 2006, at 13–14 (2006), available at http://s3.amazonaws.com/hrc-assets//files/assets/resources/StateToState2007.pdf. And if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.
Who in retrospect can blame the voters for having this fear? By then, several state courts had altered their States’ traditional definitions of marriage under the States’ constitutions. Since then, more have done the same. Just as state judges have the authority to construe a state constitution as they see fit, so do the people have the right to overrule such decisions or preempt them as they see fit.
In referring to “marriage” rather than “opposite-sex marriage,” Loving confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples. Loving did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” 388 U.S. at 12, a reference to the procreative definition of marriage. Had a gay African- American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.
No doubt, many people, many States, even some dictionaries, now define marriage in a way that is untethered to biology. But that does not transform the fundamental-rights decision of Loving under the old definition into a constitutional right under the new definition. The question is whether the old reasoning applies to the new setting, not whether we can shoehorn new meanings into old words. Else, evolving-norm lexicographers would have a greater say over the meaning of the Constitution than judges.
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