Four months ago, in Lawrence v.
Texas, the Supreme Court by a 6-3 vote announced a constitutional
right to homosexual sodomy. Government cannot “demean” one
category of consensual sexual relations, the Court said, because
all sexual relationships are equal. Justice Scalia worried
that this reasoning “leaves on pretty shaky grounds state
laws limiting marriage to opposite-sex couples.”
Those shaky grounds have now begun
to crumble. All state marital laws may have tumbled.
In Goodridge v. Department of Public
Health, the Supreme Judicial Court of Massachusetts, relying
upon the reasoning of Lawrence by a four to three vote,
announced that the “everyday meaning of marriage” is “arbitrary
and capricious.”
For those who don’t have a law degree:
marriage has just been declared irrational.
Goodridge nominally construes the Massachusetts Constitution. The decision
does not, at least in form, establish the unconstitutionality
of marriage within every state of the Union. But the overwhelming
majority of the authority cited in Goodridge consists
of Supreme Court cases construing the federal Constitution.
The Massachusetts judges, moreover, may well have read and
applied that precedent as the Supreme Court intended.
If so, the meaning of marriage in America
has changed dramatically. All state and federal legislation
– such as the federal Defense of Marriage Act – which define
marriage as a union between a man and a woman will soon fall
before a federal constitutional command. In short, unless
Goodridge has improperly cited, quoted and interpreted
the most recent decisions of the Supreme Court, marriage is
irrational in Massachusetts.
And in every other state as well.
ir·ra·tion·al adj.
- Not endowed with reason.
- Affected by loss of usual or
normal mental clarity; incoherent, as from shock.
- Marked by a lack of accord with
reason or sound judgment.
Apparently society has suffered a collective
“loss of usual or normal mental clarity” for centuries. How
unreasonable to assume that marriage can rationally be founded
upon the union of a man and a woman for the purpose (among
others) of bearing and rearing children. Such reflexive and
stereotypical thinking is “not endowed with reason,” is “incoherent,”
reflects societal “shock” and is “marked by a lack of . .
. sound judgment.” Thankfully, we have Supreme Court Justices,
both state and federal, to save us from ourselves.
But who will save us from them?
The opinions in Lawrence and
Goodridge raise many questions. Let’s look at two,
and consider them in order. First, is marriage rational?
Second, who should answer the first question?
Goodridge concludes that Massachusetts’ limitation of marriage licenses
to unions between a man and a woman does not “bear a real
and substantial relation” to any cognizable public interest,
nor does the refusal to license homosexual unions “serve a
legitimate public purpose.” Surprising conclusions indeed.
There
are, of course, numerous and various forms of sexual relationships.
These various relationships unquestionably have unique value
intrinsic to the sexual partners involved. Marriage, however,
has always been about one sexual relationship – the
sexual union of a man and a woman. The intrinsic value of
this relationship, moreover, extends beyond the partners to
society as a whole. Indeed, the marital contract has always
had three parties: a man, a woman and the state.
Because of the marital contract’s importance to the
state, the marital union has enjoyed an honored social role
for centuries. The reasons are obvious and until quite recently
unquestioned: marriage provides the sanctioned and preferred
social context for the bearing of children and their rearing
and education. Marriage, in a very real sense, is the basic
engine for perpetuating the values and ideals that make stable
societies possible.
The bearing, rearing and acculturation of children are
social interests of surpassing importance. Procreation requires
a coupling between a man and a woman. Here, if not in constitutional
law, not all sexual relationships are equal. Moreover, the
common experience of mankind – documented by a growing mountain
of research – demonstrates that the best environment for the
rearing and training of a child is within a stable marriage
between the child’s biological father and mother. These simple
facts, as true today as they were thousands of years ago,
provide more than ample grounds for the specialized treatment
– and social benefits – conferred upon marital unions.
Goodridge,
however, declares that – henceforth – lawmakers may no longer
base public policy on “providing a ‘favorable setting for
procreation’” or even on “ensuring the optimal setting for
child rearing.” Goodridge acknowledges that homosexual
relationships are sterile; indeed, fertility is “the one unbridgeable
difference between same-sex and opposite-sex couples.” Nevertheless,
the constitutional logic launched by Lawrence – i.e.,
that all consensual adult sexual relationships are equal –
cannot be limited by simple biology.
The state may not link marriage and procreation, says
Goodridge, because such linkage “confers an official
stamp of approval on the destructive stereotype that same-sex
relationships are inherently . . . inferior to opposite-sex
relationships.” The government, in short, cannot acknowledge
that children are possible only through the union of a man
and a woman because that very acknowledgement might suggest
that heterosexuality has more social utility than homosexuality.
A homosexual “marriage” will never produce a child.
Henceforth, however, we all must officially ignore this fact.
Thus constitutional law becomes implausible. No amount
of logic, no constitutional formulation (no matter how stunning),
and no new expansion in civil rights can possibly span the
“unbridgeable difference” between a marital union and homosexual
relationships. One need not believe (contrary to the Goodridge
court’s assertion) that homosexual relationships are “inherently
unstable” or “inferior” to marital relationships to conclude
that (however “worthy of respect”) a homosexual relationship
differs – quite significantly – from a union between a man
and a woman. Biology, not destructive stereotypes, has decreed
that children spring from one union and not the other.
The “everyday meaning of marriage,” in sum, is irrational
only to the extent that basic biology is irrelevant.
This raises the second question. Who should decide
whether (and to what extent) biology is relevant or irrelevant
to the meaning and status of marriage?
It is easy to forget, nowadays, that
neither the Massachusetts nor the United States Constitutions
establish state and federal judges as the ultimate arbiters
of all divisive social controversies. Lawrence, with
language more suited to an epic poem than a discussion of
the federal due process clause, asserted that the Constitution
endows the United States Supreme Court with a special mission
to protect a litigant’s “own concept of existence, of meaning,
of the universe, and of the mystery of human life.” Following
Goodridge’s use of this phrase to restructure marriage,
one wonders what constitutional limits on democratic decision-making
the universe will demand next.
Although not evidenced by the self-confident
tone which pervades the opinions in Lawrence and Goodridge,
the due process and equal protection clauses of the federal
Constitution were not written to insure victory for the theories
of social justice currently preferred by the 6-3 or 4-3 majorities
of state and federal courts. Neither clause expresses any
discernible judgment regarding the relative values of heterosexual
and homosexual conduct. Neither clause sets priorities for
the intricate social roles of marriage. The drafters of the
Constitution wisely foresaw that the people of America
could and would disagree on these and many other issues.
The Constitution, furthermore, provides a mechanism for the
resolution of these and other divisive social controversies.
That mechanism is not a courtroom.
As Justice Oliver Wendell Holmes reminded
the Supreme Court in 1905 – during another period when the
learned Justices were fond of invoking their own notions of
liberty to set aside the people’s political choices – the
Constitution “does not enact” any view of social policy.
In 1905, the Justices favored economic libertarianism. Now
they favor social libertarianism. The Constitution legitimates
neither brand of judicial activism.
If government action encroaches upon
core constitutional values (as contained in clear constitutional
text construed in light of actual American practice, experience
and tradition) the judiciary must act. But the Founders
intended the judicial role to be exceptional and rarely invoked.
Alexander Hamilton, writing in The Federalist Papers, proclaimed
the judiciary the “least dangerous branch” because it does
not create policy but merely exercises “judgment.” The really
difficult questions, Hamilton and the other Founders thought,
would be left to the people.
Modern social activists (and too many
judges) have either forgotten or chosen to ignore that most
governmental decisions are not controlled (and can’t
be controlled) by the presciently precise language of the
Constitution. If the “correct” answers to pressing questions
are fairly debatable, those questions must be – indeed, can
only be – resolved by legislative action.
This is particularly true with moral
controversies.
And morality is the central question when
it comes to marriage. Fundamentally altering the meaning
of history’s most basic social institution will have serious
consequences that no one can yet fully appreciate. We are
being asked to alter the very moral foundation of civilization.
This summer, when the Supreme Court revised
all norms related to homosexuality, and this week, when the
Massachusetts court redefined marriage, the Justices claimed
that “liberty” – not a “moral code” – was at issue. But,
as in Justice Holmes’ day, this assertion is nonsense.
Lawyers, law professors, and judges may prefer
to speak of “liberty” rather than “morality.” But no legal
rhetoric can obscure the reality that, when they redefine
sexual norms and recast social institutions, the legal elites
are doing more than expounding “liberty.” They are substituting
one moral regime for another.
Thus, the all-too-common contention
that ‘government must not regulate morality’ is utter nonsense
– unless the goal is to eliminate all government. Governmental
decisions, from welfare to clean air to sexual conduct to
speed limits, always involve competing moral values.
Who should decide who wins and loses in contests involving
fairly debatable moral claims?
Judges? In a democracy?
The expanding reach of American constitutional
law – as exemplified by decisions such as Lawrence and
Goodridge – has rendered the public increasingly oblivious
to its role as the primary source of decision-making power
under the United States Constitution. By inventing and enforcing
“rights” nowhere evident in the language of the Constitution
or the history and traditions of the American people, lawyers,
law professors and judges have slowly eroded democratic decision-making,
reducing or eliminating the people’s democratic control over
an ever-expanding range of fairly debatable moral controversies.
Questions involving the most pressing issues of modern life
– from cloning and biomedical research to marriage and children’s
rights – are now routinely and definitively answered by judges,
not by democratically elected lawmakers. After Lawrence
and Goodridge, which democratic judgments in these
and other areas will survive the potentially all-encompassing
“meaning of the universe” test?
No one knows. Because no one
knows, a vital question must be confronted. America
drafted a written Constitution in 1789. Does it still have
one now?
On this point, whether Lawrence
and Goodridge are “right” or “wrong” is almost
beside the point. The real issue is whether Americans will
continue to allow its courts, both state and federal, to continue
to usurp the people’s prerogative to decide debatable, divisive,
difficult – even unanswerable – questions of social morality.
Proper regard for the political structure
established by the United States Constitution demands that
Americans, whatever their views, now engage in a vigorous
constitutional debate regarding the meaning of marriage in
America. Do the Massachusetts and United States Constitutions
provide a right to same-sex marriage? The people, not slim
majorities of seven or nine people dressed in black robes, must answer these questions.
The social, political, moral and ethical
values at stake are too important – and too hotly and honestly
contested – to be resolved any other way.
This, finally, brings up the important
practical question: What must we do now? A multi-faceted
approach is necessary. At a minimum we must (a) amend the
Constitution to protect marriage and (b) at the same time
establish a political regime where the people – not the judges
– will be the primary guardians of liberty. For the upcoming
election cycle, the achievement of these two objectives is
linked.
(a) First, a few words about the amendment.
The Supreme Court, as you have heard repeatedly at this conference,
is out of control. It has happened before – from 1890 to
1936, the period when Justice Holmes inveighed against judicial
activism, the Court found violations of economic liberty in
every nook and cranny of American society. That period ended
only when President Roosevelt famously went on the radio and
threatened to “pack the Court” by appointing seven new members
who would agree with the views of the American people. Because
Roosevelt had the political power to carry through with this
threat, the Court suddenly “got religion” and repented of
its judicial arrogance. Between the winter of 1936 and the
spring of 1937, the Court became an entirely new institution.
The lesson here is simple: When the
Court gets out of hand, it must be stared – like any wild
beast – back into submission. Roosevelt did it in 1936.
If, by a miracle, President Bush were delivered a supermajority
of the Senate in 2004, he could do the same thing. Congress
sets the size of the Supreme Court. With secure political
backing, President Bush could simply announce that – to get
the Court back on track – he will increase the Court’s membership
to 15 and appoint 6 new and thoroughly traditionalist jurists
to the bench. The Court, as in 1936, would get the message.
The Marriage Amendment, however, can
send an even more potent scare. The Supreme Court has gotten
it seriously wrong before – and on those occasions we have
either promptly amended the Constitution (once after fighting
a Civil War prompted, in no small part, by the Court’s refusal
to enforce a congressional compromise). Serious attempts to
amend the Constitution force the Court to face its own political
mortality. If history is instructive, once faced by this mortality,
the Justices once again start behaving like judges – not petty
dictators.
Therefore, ignore the naysayers. Even
if we should NOT succeed with a constitutional amendment,
we WILL instruct the Court. Whether we win or lose, the Justices
will learn again the limits of their power. As with Roosevelt
in 1936, they will be forced to face their own mortality.
And unless they become mortal soon, American democracy may
erode beyond recovery.
Therefore, whatever the final outcome,
by working to amend the Constitution, we will not fail.
(b) This brings me to my second practical
point: in seeking to amend the Constitution, we will necessarily
be involved in establishing a political regime protective
of our liberty and constitutional rights.
The people, not the courts, are the
primary fount of decision-making power in this country; the
people not the courts are the primary beneficiaries of constitutional
governance. But, the only way these words can become reality
rather than aphorisms is to obtain a clear political majority
in the senate and the house that is committed to the structure
of constitutional liberty erected by the Founders. Without
these clear majorities, we cannot at the end of the day protect
marriage or any of our liberties. Without these clear majorities,
we will never be able to clean out the current activist judges
and replace them with true, classical jurists.
By making marriage the central and
decisive factor in the 2004 elections, we can obtain this
clear political majority committed to liberty. During the
2004 election, every candidate for the federal House or Senate
must be forced to take a stand on marriage. Those who do
not support marriage cannot be trusted to support constitutional
structure. They should not be elected. Those who do support
marriage will not only enshrine protection of marriage in
the Constitution, they will work to eradicate the Constitutional
error of judicial dominance and restore governance of America
to the American people.
In sum, by making the 2004 election
turn on marriage, we can win both of the pressing political
crises now facing America: we will save marriage, and install
a political regime that will set about restoring a proper
regime of political liberty in this great land.
May God grant us the courage, the humility,
the strength, and the wisdom to accomplish these surpassingly
important tasks.
