NOM BLOG

A Country for the People Should be Decided by the People

 

American history is fraught with differences of opinion: Patriots and Loyalists, Conservatives and Liberals, Federalists and Anti-federalists, to name a few. However, simply because there are two sides to an issue does not provide a reason for the Supreme Court to step in and rule on that issue. As Kyle Duncan writes in an article for Public Discourse:

ThinkstockPhotos-118461784The fact that Americans have reached different conclusions about same-sex marriage is not a sign of a constitutional crisis that requires the Supreme Court to step in. On the contrary, it’s a sign that our Constitution is working the way it should. In our federal system, this issue must be resolved at the state level. To resolve it through federal judicial decree would demean the democratic process, marginalize the views of millions of Americans, and do incalculable damage to our national civic life.

The redefinition of marriage goes even beyond an attack on our society’s core institution. At stake is the role of parenting, rights under family law, and the authority of self-governance:

The step from the older to the newer version of marriage is a momentous one. As Judge Jeffrey Sutton wrote for the Sixth Circuit, the concept of marriage as a man-woman institution is “measured in millennia, not centuries or decades,” and “until recently [it] had been adopted by all governments and major religions of the world.” In Windsor, the Supreme Court similarly observed that “marriage between a man and a woman had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” Thus, when state citizens decide whether to adopt same-sex marriage, one thing appears inescapably true: they are exercising their sovereign authority over the basic architecture of family law.

Only from this perspective can we see what is truly at stake in the same-sex marriage cases. The plaintiffs are not merely asking the Court to recognize a new right. Instead, they are asking the Court to declare that the Constitution removes this issue from democratic deliberation. It is often asked by proponents of same-sex marriage what “harms” would flow from judicial recognition of their claims. From the perspective of democratic self-government, those harms would be severe, unavoidable, and irreversible.

As Duncan logically articulates, marriage, self-government, and civility are all at stake. Sadly, it will take years to pick up the broken pieces of our system, the pieces that cracked when religious freedom and state rights were openly attacked. But if the Supreme Court believes that the American people will watch their right to self-governance be undermined, they are mistaken. And this weekend is just the beginning.