For Tennesseans, the decisions issued this week by the United States Supreme Court regarding the Defense of Marriage Act and Proposition 8 are perhaps best understood in terms of what they did not do. And what the Court did not do tells us what we need to do.
Neither decision held that natural marriage – the union of one man and one woman – is unconstitutional, nor did they hold that there is a constitutional right to homosexual marriage. The Court’s decisions therefore preserve, not undermine, the definition of marriage that over 81% of Tennessee voters enshrined in our state constitution. Marriage, in Tennessee, is still the union of one man and one woman. And any marriage performed in another state that is contrary to that definition is invalid in Tennessee.
It’s also noteworthy that the best arguments that could be made in support of homosexual marriage were made and not accepted by the Court. Let there be no confusion here. Our Supreme Court is more than capable and willing to find ways to reach results that a majority of the Court wants to reach. Had the Court wanted to find a constitutional right to gay marriage, it could have. Had the Court wanted to impose a redefinition of marriage on all 50 or a smaller number of states, it could have. It did neither.
The Court may have avoided the issue in order not to create the societal turmoil that came from the Roe v. Wade decision in 1973 regarding abortion. That decision foisted a legal result on Americans that they were not ready to accept, and it created social and political conflict that exists to this day. Thus, the Court may have decided to wait until there is a clearer societal position regarding marriage.
If that is true, it is sad that the meaning of the Constitution would “change” based on public opinion; however, a “living constitution” approach to constitutional interpretation seems to be where we are today in judicial and legal philosophy. Therefore, those who support natural marriage cannot rest in their advocacy for the value of natural marriage.
And in advocating for natural marriage, supporters must not allow opponents to cast the issue as a “civil right.” That assertion proceeds on that assumption that we all agree that marriage is simply an emotional bond or loving commitment between two adults. But that assumption begs the question. The foundational question is the meaning and purpose of marriage. We can’t decide the civil right question until we agree about what marriage is.
In that regard, love and emotional bonding are important to marriage, but that is not why the state encourages marriage. There are many types of relationships in which emotional bonds are strong and the persons involved love one another. But as important as those things are to those persons, they are not marriages. And it must be kept in mind that marriage laws do not prohibit those relationships.
Marriage laws are designed to promote the societal good that comes from the unique contribution that a married mom and dad can bring to the well-being of children. Reams of social science research back up that claim.
Contrary to what some would have us believe, marriage is not just a private matter or only about the desires of self-interested adults. It is a public good that promotes the good of society by encouraging the optimal environment for the nurture of the children who are our future. I believe Tennesseans and most Americans know and really believe that deep down. Now we just need not be afraid to say it and to make sure our fellow citizens keep their eye on the real issue at hand.