Opinion: The Supreme Court, gay ‘marriage’ and thin air

DETROIT, MI - MARCH 3: An advocate of traditional marriage protests in front of the U.S. Federal Courthouse March 3, 2014 in Detroit, Michigan. Plaintiffs Jayne Rowse and April DeBoer, a gay couple, have filed suit in Federal Court in an attempt to have Michigan's ban on gay marriage and gay adoption overturned. Current Michigan law defines marriage as the union between one man and one woman. (Photo by Bill Pugliano/Getty Images) (2014 Getty Images)

The claim advanced by several federal judges that the U.S. Constitution requires states to license gay ‘marriages’ is utterly audacious. Stripped to its core, we are being told that since 1868, when the Fourteenth Amendment to the constitution was adopted, gays and lesbians have had the right to ‘wed’ someone of the same sex. It’s been that way for the past 147 years and all this time every state in the nation has been violating the constitution.

That is the legal position of those asserting a constitutional right to gay ‘marriage.’

Of course, the idea that the American people required states to redefine marriage when they adopted the Fourteenth Amendment is entirely preposterous. The very notion that someone could ‘marry’ a person of the same-sex would have been unimaginable.

The U.S. Supreme Court would do well to consider the damage it would do to public confidence in the integrity of the judicial system if it were to follow suit and create a constitutional right redefining marriage out of thin air.

— Brian Brown

No matter. A score of federal judges from California to Florida have concocted out of thin air the idea that the Fourteenth Amendment requires states to strip marriage from its mooring as an institution focused on the interests of children, which only the union of a man and a woman can create. In the process, the considered judgment of state legislatures and nearly 50 million voters has been ignored and made subject to judicial imperialism, a process that essentially says ‘democracy be damned’ because unaccountable judges know better.

The U.S. Supreme Court would do well to consider the damage it would do to public confidence in the integrity of the judicial system if it were to follow suit and create a constitutional right redefining marriage out of thin air. Plainly, unquestionably, there has not been a right to same-sex ‘marriage’ hidden in the U.S. constitution for the past 147 years. In fact, in 1972 when the Court first considered this audacious claim, they unanimously dismissed a case “for want of a substantial federal question.” (See Baker v Nelson). The supposed ‘right’ to gay 'marriage' did not exist in 1868, it did not exist in 1972 and it does not exist today. Any claim now by the Supreme Court to the contrary will not be considered legitimate by millions of Americans. Rather, it will be seen as an impermissible political ruling, one that will likely trigger a profound public reaction from a public that already holds judicial activism in disrepute.

Federal judges simply do not have the power to invent things out of thin air to advance a political agenda. Politics belongs in the court of public opinion, not courts of law.

It is perfectly rational for states to define marriage as the union of a man and a woman. That’s what marriage is, and how it has existed throughout recorded human history. This understanding of marriage is consistent with the natural order where the sexual union of men and women uniquely creates the possibility that children will be born of that union. It is the interests of children that society has in promoting marriage between men and women.

What are those interests? A child who grows up in a home with a mother and father is much more likely to be well-cared for, to avoid poverty, to enjoy better physical and mental health, to avoid problems of criminality and delinquency, to attain educational advancement, to secure satisfactory employment, and to have better social interaction and relationships with others, among many other benefits.

For thousands of years, marriage has been society’s best mechanism of bringing men and woman together and ensuring the best environment for any children born of their union. It is not only a constitutional institution, it is a profoundly good and important one that should be encouraged and promoted. The U.S. Supreme Court must reject the call to judicial activism and must respect the decision of the American people to define marriage in the law as it exists in reality, the union of one man and one woman.