Why Should Five Justices Decide on Same-Sex Marriage for the Country?

Cathy Ruse is Senior Fellow for Legal Studies at Family Research Council. This article appeared in USA Today on April 28, 2015.

Today the U.S. Supreme Court will hear arguments involving one of the most contentious social issues in modern American history. One side will ask the court to choose winners and losers in the same-sex marriage debate. The other will ask the court to let the people of each state decide for themselves.

I am an attorney with an organization that tops the "enemies lists" of progressive political groups. Our chief offense is that we believe marriage is exclusively a man-woman proposition.

Half of America agrees with us; likely more, if you count votes rather than survey answers. Those numbers matter. We can't be dismissed as outliers with odd views, or worse. Even the most enthusiastic gay marriage advocates should be loath to attribute base motives to half of their fellow citizens.

As we see it, support for man-woman marriage is based on sincere conscientious belief, religious conviction and the logic of biology. Throughout all of history and in every culture marriage has been set apart from other relationships because of how humans propagate — not alone, or in groups or with members of their own sex, but through sexual union with one member of the opposite sex. Every person alive today owes his life to this simple, biological equation.

Religious Americans see in this design the hand of God. Others look at the practical benefits that flow from it, namely that children thrive with a mother and father. That is why government is involved in marriage in the first place: to encourage men and women to establish stable unions to raise their children for their good and the good of society.

The Supreme Court has long recognized that the people of each state have the authority to define and regulate marriage within their borders. United States v. Windsor struck down part of the federal Defense of Marriage Act which defined "marriage" in federal law as opposite-sex unions. Why? Because this federal law failed to respect New York's right to shape its own marriage policy.

The people have always had a stake, a vote, a voice. There is always tomorrow and another chance to persuade your elected officials or fellow citizens of the rightness of your cause. And you can always "vote with your feet."

Yet increasingly courts are taking away the power of the people to participate in this debate. In nearly two dozen states, federal judges have overruled the will of the people and struck down state marriage laws. Five members of the Supreme Court could take the issue out of the hands of the people altogether and mandate that marriage be redefined in all 50 states.

It is difficult not to think of Roe v. Wade. At the time of Roe, states were beginning to loosen limits on abortion. Not all of them would, to be sure, but the momentum was on the side of the abortion lobby. Then the Supreme Court took the issue out of the hands of the people, declared one side the winner, and established a policy of virtually unlimited abortion nationwide. And the New York Times declared the contentious issue settled.

Of course there is hardly a less-settled issue in public life today, four decades later.

Deciding for a people disenfranchises them, embitters them and, ultimately, does not persuade. The citizens of a republic can understand political wins and losses, and when arrived at democratically even losses go down more easily. Losses do not go down easily when they are issued from powers on high.

Today the Supreme Court will be urged once again to "settle" a contentious issue by forcing same-sex marriage on all 50 states and nullifying the votes of over half of America. It should decline. The better way, the constitutional way, is to let the people of each state decide for themselves.