Cathy Ruse is Senior Fellow for Legal Studies at Family Research Council. This article appeared in Decision Magazine in the June 2015 issue.
When the Supreme Court heard arguments involving one of the most contentious social issues in modern American history, one side asked the court to choose winners and losers in the same-sex marriage debate, the other asked the people of each state to be allowed decide for themselves.
Some polls show that half of America believes marriage is exclusively a man-woman proposition-and much more than that if you count votes rather than survey answers. The first few comments and questions from the justices at oral arguments gave some reason for hope.
Mere minutes into the 2 ½ hours of arguments, Chief Justice John Roberts said to the petitioners:
Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable… My question is you’re not seeking to join the institution, you’re seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship.
Then Justice Anthony Kennedy, considered the swing vote on this and so many issues, weighed in:
The word that keeps coming back to me in this case is—is millennia, plus time. First of all, there has not been really time, so the respondents say, for the federal system to engage in this debate… But still, 10 years is—I don’t even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it—it’s very difficult for the Court to say, oh, well, we—we know better.
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.
Christians see in this design the hand of God. And every honest observer recognizes a simple and undeniable truth: children need a mom and a dad, not just Parent No. 1 and Parent No. 2. All the hard scientific data confirm that children raised by a mother and a father have the best outcomes in education, economic well being and emotional stability. 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. U.S. 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. That assures that 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 (a majority if the nine justices) 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. The New York Times declared the contentious issue settled.
Of course, four decades later, there is hardly a less-settled issue in public life today.
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. But, losses do not go down easily when they are issued from powers on high.
If the Court imposes same-sex marriage on the nation it is difficult to predict the myriad ways Americans will be affected—not only the children who will be officially deprived of a mother or father by government decree, but also the Americans whose moral and religious beliefs compel them to disagree with the idea that marriage can be something other than a man-woman proposition.
One such effect was spelled out before the justices when the Obama Administration’s own Solicitor General Donald Verrilli: Religious colleges and other non-profit institutions who do not bend the knee will lose their tax-exempt status.
Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?
General Verrilli: You know, I—I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I—I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.
In other words, Planned Parenthood will continue to enjoy tax-exempt status (and loads of taxpayer dollars) as will the Feminist Majority Foundation and dozens of groups funded by billionaire George Soros. But religious schools, colleges, and not-for-profit ministries that embrace man-woman marriage-including the Billy Graham Association and Samaritan’s Purse-could have their tax-exempt status yanked for being bad public actors.
Before the Supreme Court reaches its decision, it must keep Roe in mind and self-harness its power, knowing that it will not “settle” the issue by forcing same-sex marriage on all 50 states. To do so would be folly.