The Defiance of Marriage Act
Days from now, our country will be celebrating an America that its founders would barely recognize. Freedom, Alexis de Tocqueville once said, requires virtue. Today, the U.S. Supreme Court made it clear that the pillars of both are under attack. By a single vote, five unelected justices determined that they know better than God and struck at the heart of marriage in America.
It was a powerful rebuke of a law FRC helped develop, the Defense of Marriage Act (DOMA) -- but not the final blow. To the disappointment of many, this was not the sweeping nationwide redefinition of marriage that homosexual activists were hoping for. Instead, the Court's majority decided that the federal law is unconstitutional in states where same-sex "marriage" is legal. There, couples will have full access to the 1,100 federal benefits, rights, and protections that naturally married spouses enjoy. While it wasn't a complete dismantling of marriage, the Court's ruling paves the way for a wave of attacks on state constitutional amendments all across America, where same-sex couples will fight for the same "rights" the justices are granting elsewhere.
Writing for the majority, Justice Anthony Kennedy insisted that defining marriage as the union of a man and woman -- as nations have since the beginning of time -- is "to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States." It is one thing, Justice Antonin Scalia fired back, "for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it [are] enemies of the human race." Chief Justice John Roberts agreed, writing that the definition of marriage wasn't driven by a "sinister motive" but by its "role and function throughout the history of civilization." Nor, argued Justice Samuel Alito, did Congress or the federal government violate the Constitution by defining marriage through DOMA in 1996. "The Constitution does not guarantee the right to enter in a same-sex 'marriage.'" And certainly judges, he said in oral arguments, are "not equipped to make such an assessment."
Nor are we. What God imprinted on the human heart, no judge or court can change. The Court can declare same-sex "marriage" a legal right in the eyes of government, but judges cannot make it morally right in the hearts of the people. This is an institution that carries God's own signature. Even absent any faith, the natural order proves the only successful model for civilization is natural marriage. For nine years, homosexual activists have hidden behind the black robes of the court, trying to force their will on America before people wake up to the devastation. In California, voters already understood what was at stake. In two separate referendums, they flooded the ballots for marriage, winning a constitutional amendment in 2008 in the largest state in America. For five years, the Left has battled to tear down this monument to democracy and the natural family. California Governor Jerry Brown, ignoring his people -- and the law -- took a page from President Obama's school of defiance and refused to defend the amendment in court. Left without options, the proponents of Proposition 8 took it upon themselves to protect it.
Today, the Supreme Court, in a profoundly disturbing decision, ruled that these voters lacked the standing to represent a state amendment that more than 7,000,000 Californians passed. Our legal experts are analyzing the complicated next steps and implications of this decision on marriage law in California. What is clear is that it was a slap in the face of democracy, in which five justices agreed that the people of 'We The People' can be ignored when the outcome is not what a tyrannical government wants. The Supreme Court holds instead that voters' voices can be discarded in a heap of judicial arrogance. Left untouched, the Court's ruling allows the executive branch to effectively veto any duly enacted law, without any remedy for a vulnerable electorate.
Even Justice Kennedy, the author of DOMA's downfall, mourned the precedent the Proposition 8 decision sets for a nation of sovereign people. "What the Court fails to grasp or accept," he writes, "is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century." Like us, he understands that if the court abandons the cornerstone of American government, the rest of the foundation will crumble.
Fortunately, conservative leaders across our country aren't about to let that happen. In interview after interview, tweet after tweet, the message echoed from Governor's mansions to congressional floors: we are not giving up. It started with Congresswoman Michele Bachmann (R-Minn.) and flooded the wires since then. "No man, not even a Supreme Court, can undo what a holy God has instituted." Rep. Tim Huelskamp (R-Kans.) vowed to lead the fight for a Federal Marriage Amendment. Governor Mike Pence (R-Ind.) said he would use today's rulings as motivation to work even harder for a state marriage amendment. "I look forward to supporting efforts by members of the Indiana General Assembly to place a constitutional amendment on the ballot for voter consideration next year."
House Speaker John Boehner (R-Ohio), House Minority Leader Eric Cantor (R-Va.), and other members of GOP leadership pledged to lead a robust debate over marriage and win more American hearts and minds to marriage as the union of "one man and one woman." Fifteen other members stood in solidarity in the Capitol for a special press conference, led by Rep. Vicky Hartzler (R-Mo.), promising to "defend the rights of Americans to make marriage policy."
The Left will say that we are on the wrong side of history, but that doesn't matter if we're on the right side of truth. And the truth is not that #LoveIsLove, but that the love of a man and woman, for life, is God's design for marriage and family. Forty years ago, many people thought -- as some might today -- that the battle for life was lost. Over time, our movement and technology helped to change people's hearts and minds to a new understanding of the sanctity of the unborn child. And we will do it again. As more Americans see and feel the erosion of religious liberty, of parental rights, of children's innocence, and of conscience rights, their opinions will no longer be swayed by emotions and popular opinion -- but by the reality of the fundamental harm that same-sex "marriage" poses to society. A generation from now, we could be celebrating the same sweeping victories on marriage that we're experiencing on life. But it will take a faithful remnant. People in America's pews and pulpits who have been silent can be silent no longer. For, "There is only one Lawgiver and Judge, the one who is able to save and destroy." (James 4:12)
Are these rulings demoralizing? Definitely. But we will not let a court's definition of marriage define us. As I've told my staff: we were not called to serve results. We were called to serve God. And that is what FRC will do in Washington and around the country -- proving marriage's unique importance to the future of society. Someday -- years from now -- when law students are memorizing this date and its importance in American history, what will they say about our movement? That it united together and changed the conversation on marriage? That it refused to quit until it transformed state and federal laws? Hopefully, they will say that you and I stood on truth -- and restored marriage and the Author of marriage to their rightful place in American policy.
** For more reaction on today's decisions, don't miss my interviews on ABC, CNN, "The Mike Huckabee Show," and Fox News (video below). Also, this evening's edition of "Washington Watch with Tony Perkins" with the latest analysis on marriage will be available on-demand starting at 6:00 p.m. (ET) here.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.