NOM BLOG

Why It's Wrong to Redefine Marriage Under the 14th Amendment

 

Over at The Daily Signal, our friend Ryan Anderson has analyzed what's wrong with the recent 10th Circuit Court of Appeal's recent ruling on Utah's marriage amendment.  The circuit court ruled that Utah’s marriage amendment defining marriage as the union of a man and a woman violates the 14th Amendment of the U.S. Constitution.  This was the first time a circuit court ruled on marriage since the U.S. Supreme Court's decision on the Defense of Marriage Act (DOMA) last year.  In his article, Anderson explained why this case is significant.Ryan Anderson

Anderson wrote that the ruling over marriage, and the larger, related debate about marriage, points to the fundamental question: what is marriage?

Of course the Fourteenth Amendment protects the fundamental right to marry—but the Supreme Court decisions that established a fundamental right to marry understood marriage as the union of a man and a woman. In issuing today’s ruling, the court implicitly supplied its own, new answer to the central question in this debate: what is marriage?

The only way the 10th Circuit could reach its decision today was to smuggle in a view of marriage that sees it as an essentially genderless institution and then declare that the Constitution requires that the States (re)define marriage in such a way.

Anderson blasted judicial activism, writing:

Of course the Fourteenth Amendment protects the fundamental right to marry—but the Supreme Court decisions that established a fundamental right to marry understood marriage as the union of a man and a woman. In issuing today’s ruling, the court implicitly supplied its own, new answer to the central question in this debate: what is marriage?

The only way the 10th Circuit could reach its decision today was to smuggle in a view of marriage that sees it as an essentially genderless institution and then declare that the Constitution requires that the States (re)define marriage in such a way.

Judge Paul Kelly, who wrote the dissenting opinion in the Utah case, quoted Supreme Court Justice Samuel Alito, explaining:

“‘Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law,’ at least when it comes to the States’ right to enact laws preserving or altering the traditional composition of marriage.”

People and their elected officials, not judges, should be making decisions about marriage policy, Anderson wrote:

In citing Justice Alito, Judge Kelly hit on an important point—that there are competing policy arguments on the definition of marriage and that in a system of limited constitutional self-government, the people and their elected representatives should be making these decisions.

[...]

We must rally in support of our constitutional authority to pass laws defining marriage. We must make clear that court-imposed same-sex marriage via a Roe v. Wade-style decision will not settle the marriage debate any better than it has settled the abortion debate.

Read the rest of Anderson's article here.