Utah’s marriage law, and a measure of its self-determination, has now been wiped out by the inaction of the U.S. Supreme Court. As you know, that court last week turned back petitions from Utah and four other states whose marriage laws had been struck down by lower federal courts.
Thus, as Justice Kennedy said, to the edge of the cliff we go. Just 18 months ago, during the Hollingsworth v. Perry Prop 8 case, Justice Anthony Kennedy wondered if the court, or anyone, knew what it needed to know to decide the same-sex-marriage question. Kennedy said, “The problem in the case is that you’re really asking … for us to go into uncharted waters . . . it is a cliff.” Apparently, a little more than 18 months on, the court believes the country is ready to go over that cliff and into those uncharted waters.
After hearing oral arguments in that same Perry case, Notre Dame Law School’s Gerard Bradley described what happened:
Justice Alito looked for “data” on this “institution which is newer than cell phones.” Same-sex marriage, he said, might turn out to a “good thing”, or “not”, as Proposition 8 supporters “apparently believe.” Justice Scalia said that there is no “scientific answer” to the decisive “harm” question at this time.” Justice Sotomayor asked the Solicitor General: why not “let the States experiment” for a few more years, to let society “figure out its direction.”
That’s a sample of what they were thinking 18 months ago. It’s impossible to know what precisely the justices were thinking yesterday. One possibility is that one or more of the conservative justices on the court voted not to hear any of the cases because they knew the liberal justices, along with Justice Anthony Kennedy, were poised to make gay marriage the law of the land. Another possibility could be that some justices might have approved of the policy result but just hoped to spare the court of doing the “dirty work” that the circuit courts seemed willing to do.
On a radio program the day of the Supreme Court’s decision (or decision not to decide), a guest commentator paraphrased Justice Robert Jackson’s statement that the Supreme Court is not final because it’s infallible but is rather infallible because it is final. Whatever humor there is in that observation, it is outweighed by the deeply unattractive picture it paints. That attitude has profound and distressing implications for the rule of law if the Constitution can mean whatever judges say it means just because they have acquired the power to enshrine their opinions as the “correct” understanding of the Constitution.
Defenders of marriage will, and should, support the states still defending their marriage laws in other lawsuits. If they are successful in convincing a circuit court to rule in favor of the ability of people of the states to determine their own marriage laws, there’s a remote chance the Supreme Court will be forced to rethink their tacit support for redefining marriage.
More important, however, is to take a long view. This decision is not the first time the Supreme Court has made a mistake. In 1973, they said that state laws could no longer protect unborn children. Those who cared about life then took responsibility to persuade their fellow citizens that life should be protected at every stage and have managed to profoundly influence public opinion in a positive way. More recently, they have been able to also influence the laws of many states to make them more favorable to the rights of the unborn.
Those who care about marriage and its role in protecting the entitlement of children to be reared by a married mother and father must now take the long view. They need to help their family, friends and associates understand that men and women, fathers and mothers are not just interchangeable parts and that marriage should not just be a word the government uses to express approval for adult relationships.
And for people of faith, the LDS Church’s Dallin H. Oaks spoke clearly just a few days ago. While encouraging civility from all sides, he said:
We must not surrender our positions or our values. The gospel of Jesus Christ and the covenants we have made inevitably cast us as combatants in the eternal contest between truth and error. There is no middle ground in that contest.
William C. Duncan is director of Sutherland Institute’s Center for Family and Society and also serves as director for the Marriage Law Foundation.