When the U.S. Supreme Court considered a handful of petitions regarding challenges to the definition of marriage, the stakes were high. What was at stake? The meaning and purpose of marriage, the ability of citizens to make the laws that govern them, the nature of the Constitution and even the viability of the rule of law.
The immediate question for the Court is whether it would allow lower court rulings to stand that had said the United States Constitution mandated a redefinition of marriage. So, when the Court agreed to review those decisions, it was a victory for marriage.
It is important to remember that the attorneys trying to invalidate California’s marriage amendment, Proposition 8, had argued against the Court taking the case. They had been able to convince a panel of judges on the U.S. Court of Appeals for the Ninth Circuit, significantly disposed in their favor, to rule against Proposition 8 using the highly novel legal theory that the Constitution required redefining marriage in California because the people of that state had disagreed with an earlier California court decision redefining marriage. Perhaps they recognized that the implausibility of their “constitutional” case would be hard to defend.
The groups attacking DOMA may also find it difficult to convince the Supreme Court not to overturn the unprecedented decision of the Second Circuit that marriage laws discriminate on the basis of a category irrelevant to the law (“sexual orientation”) which should be treated the same as laws that disfavor women or men as a group. This proposition has never been applied by the Supreme Court or by the other circuit courts that have addressed it.
As some try to spin the decision, it is worth being as clear as possible about what advocates of redefining marriage are asking the Court to do. Their argument is that the U.S. Constitution mandates each level of government redefine marriage to include same-sex couples.
This will be a hard sell. Clearly the text of the Constitution, the history of our Republic, and precedent from the Court don’t support the idea. In fact, the Court ruled in 1972 that a claim that various provisions of the Constitution, including those invoked by the plaintiffs in these cases, did not create a constitutional right to redefine marriage.
Thus, the lower courts have thrashed about in an attempt to create legal theories to justify that result. In the Proposition 8 case, the court impugned the motives of California voters. In the DOMA case, the court misapplied rules meant to protect politically powerless minorities to protect advocates of a cause that prevailed electorally in four states last month.
There is thus an important opportunity and responsibility for the Supreme Court to turn back this radical effort to reconfigure the Constitution in order to redefine marriage. The integrity of our legal order is implicated in the Court’s decision. The rightful expectation of children that their society will promote and protect their opportunity to know and be raised by a father and mother is also in the balance.
That’s why it is good news that the Court will have the change to correct some serious judicial mistakes. With all that is at stake, cases of this import will likely not arise again soon.