Over recent months, three federal Circuit Courts of Appeals have held that laws defining marriage as the relationship between one man and one woman are unconstitutional. One obvious implication from the Supreme Court’s decision this week not to review those decisions is that marriage between two people of the opposite sex is no longer the law in as many as 30 states. But there are other equally important, though subtle, implications we need to appreciate that aren’t getting much play in the media.
The Words of the Constitution Are Meaningless
One implication is that the Supreme Court is not concerned with what the Constitution actually says. How do I know that? Because in 1972, in the case of Baker v. Nelson, the U.S. Supreme Court said the denial of a marriage license to two men in Minnesota did not involve a “substantial federal question.” That meant that the right of two people of the same sex to marry wasn’t even a constitutional issue then.
But forty-two years later it apparently is? Pardon me, but was there some change in language in the Constitution since 1972 that I missed? Of course, the answer is “no.”
When you read the decisions of the Courts of Appeals, you quickly realize that the only thing that changed was our societal acceptance of three things: no-fault divorce that substituted feelings and emotions for commitment as an element of marriage; contraceptive measures, including abortion, that completely decoupled the concept of procreation from marriage; and sexual intercourse between two people of the same sex.
In other words, the refusal of the Supreme Court to uphold its previous decision in Baker is another example of the fact that our judicial system has adopted the view that the actual words of the Constitution don’t matter. The words will mean what the judges say they mean.
The Court Lacks Courage
Another implication is that a majority of the Court lacks the courage to express its opinion on the issue, and in doing so has undermined its legitimacy.
Some pundits say the Court may have been trying to preserve its legitimacy by not deciding the marriage cases. The thinking was that the Court wanted to void the accusation that it “imposed” a new definition of marriage on the country and by not doing that, it could avoid the criticism it received in 1973 when it imposed abortion on demand on all the states.
But the Supreme Court did make a decision; not reviewing the Court of Appeals’ rulings was a decision. And, in my opinion, by not taking up the case, the Court actually undermined its legitimacy by effectively allowing the lower courts to “reverse” its own precedent in Baker.
I sat through the Sixth Circuit Court of Appeals arguments in Cincinnati in August. I listened as two of the three jurists pressed opponents of marriage to explain why they should disregard a clear precedent by the Supreme Court, whose opinions were binding on them. Now I can’t help but wonder if they are re-evaluating the amount of respect they owe a Supreme Court that would let lower court judges effectively overrule them.
The Marriage Debate Is Getting Started
The final implication is that the marriage debate is not over; it’s about to heat up. I say that not because marriage has been redefined, but because we now have no definition of marriage.
For example, in the Tenth Circuit Court of Appeals, the state argued that “a court cannot determine whether there is a right to marriage without first defining the institution.” Makes perfect sense, but the Court declined, saying only that it “cannot define marriage in a way that denies its citizens the freedom of personal choice in deciding whom to marry, nor may it deny the same status and dignity to each citizen’s decision.”
With that kind of sweeping language and thinking, the door is wide open for every potential coupling of citizens—threesomes or more—to argue that non-recognition of the kind of marriage they want is to deny them their “dignity” and “freedom of personal choice.”
These are just three of the legal implications of the Supreme Court’s “decision” this week. The cultural implications—from religious liberty, to the workplace and to public education—will be revealed in time. Now, more than ever, it is time to pay attention and get involved.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.