Shortly before the end of class one day during my senior year, my teacher, a man for whom I otherwise have great respect, boldly stated in front of the class that marriage is a relatively recent phenomenon in human history that is not necessary to the maintenance of a healthy society.
A trained debater myself, I was not going to sit on the sidelines and let marriage go undefended, so I told him that, among other things, marriage was a fundamental institution of society existing since Adam and Eve that provided innumerable benefits to children, families, and society.
While I was shocked by the decidedly anti-religious nature of his response (he shrugged off Adam and Eve as being little more than biblical fairytale characters), I was more concerned by the relative disengagement of most of my peers in the conversation.
To be clear, I know that this was just a classroom experience in a relatively small Montana town and that my classmates were young adult students who probably did not see the point in debating with their well-respected, fun-loving chemistry teacher.
Nevertheless, marriage’s influence on society is foundational to the social, economic, and cultural wellbeing of every village, town, city, and country, [1]. An abundance of research findings makes it clear that marriage has tangible benefits for individuals and families, [2].
While it has admittedly existed–until relatively recently–for very practical purposes, such as ensuring the family had enough resources and workers, [3], marriage between a man and a woman has long performed crucial societal duties, such as being the glue that holds families together when defenseless children are born, [4].
Chief Justice John Roberts acknowledged this in his dissenting opinion to the landmark 5-4 Obergefell v. Hodges decision in 2015 that ruled that the Constitution protects the right of citizens to marry anyone they choose and that all states were required to issue marriage licenses to both same-sex and heterosexual couples, [5].
He boldly asked the Supreme Court, “Just who do we think we are?”, [6]. Roberts and the other dissenting justices recognized the many social and societal reasons for which a country or state would define marriage as being between a man and a woman. However, their issue with the decision–and my issue–is almost entirely Constitutional.
On paper, this decision may not sound earth-shattering or even controversial. Indeed, you might be wondering why I have bothered with writing about law that has been in place over the last 10 years and has grown to gain broad, even majority, societal support, [7]. Many people today believe that even if you disagree with the practice of same sex marriage, you should still let others make decisions about whom they love and how they live. 5
However, my argument has little to do with public opinion, or even the morality of same-sex marriage—though those are both important reasons for why the Supreme Court should have let the people decide the issue themselves. Instead, this issue is a question of the Constitutionality of whether the states–and, by extension, the people–have a right and reason to define marriage as being between a man and a woman.
Throughout our nation’s history, the 10th Amendment’s clause on powers reserved to the states has been interpreted to include the power to define marriage and issue marriage licenses, [8]. Their right to do so is firmly rooted in the knowledge that marriage, childbearing, and families are crucial components of a well-ordered society. In my view, the Supreme Court ripped this power away from the states in the Obergefell decision by forcing them to issue marriage licenses to same-sex couples.
To be fair, states have at times abused their reserved powers in ways that the Supreme Court has legitimately found unconstitutional. For example, until the landmark case of Loving v. Virginia in 1967, many states banned interracial marriages. Some argue that the decision to effectively define marriage as also being between two people of the same sex was a logical extension of the Court’s duty to protect minorities–be they racial or sexual.
However, because marriage has existed for thousands of years primarily as an institution uniting men and women, I argue that forcing the states to recognize this unprecedented interpretation was an egregious abuse of judicial power by the Supreme Court.
The Supreme Court and the federal judiciary have long been regarded as the weakest of the three branches of government because as Alexander Hamilton put it in Federalist 78: “The Executive…holds the sword of the community. The legislature…commands the purse…[and] prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary…has neither FORCE nor WILL, but merely judgement,” [9].
The Obergefell decision (and admittedly many others in recent decades) departed from this regime by asserting that the Court could decide and define rights that were not expressly enshrined in the Constitution. While it probably had honorable intentions, the majority’s reasoning was neither based on honoring the Constitution nor on exercising the limited powers of the judiciary to interpret the same.
Instead, the 5 justices of the majority relied on their own conceptions of right and wrong as well as on an unprecedented interpretation of the “due process” clause in the 14th Amendment to overrule–at least with regard to marriage–the long-standing Constitutional principle that all rights not enumerated in the Constitution or Bill of Rights were to be regulated by the states, [10].
Put simply, this decision was not made through judicial review. It was policymaking couched in judicial terms that decidedly usurped legislative functions and has endangered the democratic process by stripping state legislatures of the power to govern by the will of the people on crucial social matters, [11].
It is important to note that since the Obergefell decision, Congress passed the Respect for Marriage Act, which enshrined some protections of interstate marriage recognition guaranteed to same-sex couples by the decision into law, [12]. Before this, Congress had passed the Defense of Marriage Act in 1996 that defined marriage as being between a man and a woman and protected states from having to recognize same-sex marriages performed in other states, though this was later overturned by the Court before Obergefell, [13].
Lamentably, the legislative privilege of Congress and the people themselves to decide crucial questions of cultural and social conflict on which the Constitution is silent was taken away from them on the marriage issue. Whether or not “it is demeaning to lock same-sex couples out of a central institution of the Nation’s society,” as Justice Kennedy wrote for the majority, is of little importance when it comes to interpreting the law and Constitution, [14].
