Article Aug 6, 2014

Who gets to define marriage? Utah’s marriage amendment and the Supreme Court

“What is Marriage?” That’s the question that my friends Ryan Anderson, Sherif Gergis and Robert George want answered. We’re now embroiled in a great national debate about a) what the answer to the question is; and b) who gets to answer this question.

More often than not, when debated on TV or in print, it’s the question of what marriage actually is that gets completely ignored or intentionally avoided.

“What is marriage?” is the key question that drives all other aspects of this debate. It’s not first whether denying same-sex persons civil marriage violates the equal protection clause of the Constitution; it’s not first whether support for traditional marriage somehow humiliates children in same-sex households. No, the question at stake is more foundational and definitional. What’s at stake in this debate—and what needs to be answered—is whether marriage is malleable or fixed; whether marriage is something subject to electoral opinion, or whether—like water—marriage has a definite composition. Or, to use Anderson, Gergis and George’s terminology, whether marriage is conjugal or subject to revision.

For if marriage is something; that is, whether it is intelligible and has a definite shape to it, then the question of whether same-sex attracted persons can enter into something that they’re not apt to enter, becomes irrelevant. All individuals are free to marry; it’s simply the case that not all adult relationships are pursuing relationships that are marital by nature. And who gets to make this decision is where the debate lies.

It also happens to be an important aspect up for debate in the just-released cert petition that Utah officials have filed before the Supreme Court, asking the nine justices to determine "[W]hether the Fourteenth Amendment to the United States Constitution prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman."

The cert petition comes after a June 10 Circuit Court of Appeals ruling struck down Utah’s state marriage amendment.

Petitioners strike at the heart of the debate, urging that people of goodwill can disagree over marriage’s definition:

The difference in these views is not that one side promotes equality, justice, and tolerance, while the other endorses inequality, injustice, and intolerance. Rather, it is a difference in understanding about what the marriage institution is—or ought to be. People can disagree. But the question for this Court is not which view is better; it is whether the Constitution compels states to adopt either definition. (emphasis mine)

For all of the shoddy argument and shallow rhetoric bandied about over “marriage equality,” petitioners have positioned this case around the issue that demands to be answered: Whether marriage amendments that define marriage as the union of a man and woman pass constitutional muster. Supreme Court justices will have to consider the merits of different views about marriage’s essence, but ultimately, the question reduces to a matter of authority: Do the people, endowed with their capacity for observation about society’s ends and goals, have the ability to define marriage? Or, rather, does the Constitution require a definition-less understanding of marriage? Do citizens possess the authority to define marriage laws? Or, do judges? The Court should recognize the legitimate authority for citizens to make reasonable observations about the nature of marriage—actions that citizens in over thirty states have taken.

The Court should take up this case. Moreover, it should listen to the canons of received tradition and wisdom that has long recognized, to quote Chesterson, that “an ordinary man and an ordinary woman and their ordinary children literally alter the destiny of nations” and recognize that marriage amendments enacted by citizens in a representative government are constitutional.

Regardless of what the Court decides to do, marriage has a normative poise to it. This, the Court can never undo. Marriage is an institution that has been recognizable across all cultures throughout all of history by very diverse cultures and thinkers. It’s the one union that draws a man and woman together as husband and wife to be father and mother to any children their union produces.

The stakes are enormous in this case. Should the Supreme Court decide to take it up (and it could decide not to), it could very well offer a Roe v. Wade-style ruling that strikes down all state constitutional amendments. Or, it could defer the issue to the states. Either way, the Supreme Court is now in the position to settle once and for all who in America is empowered to answer this one single question—What is Marriage?