Marriage and Self-Government
On Friday afternoon, the Supreme Court announced that it will hear arguments in two cases that are at the center of the same-sex-marriage controversy. One concerns the power of people in the states to govern themselves on the question, the other the complementary power of Congress to define “marriage” for purposes of federal law.
At issue in both cases is whether courts should even be hearing them, because there are knotty questions of standing (and also of what should happen to lower-court rulings if the Court rules that parties did not have standing). If the Court does reach the merits in these cases, it should find its way toward a defense of the right of republican self-government.
In Hollingsworth v. Perry, the justices will consider the constitutionality of Proposition 8, an amendment to the California constitution affirming that marriage is the union of a man and a woman. The people of the state passed it by referendum in 2008, shortly after the state supreme court ruled that the state constitution, unbeknownst to anyone until then, required official recognition of same-sex marriage. In the federal lawsuit that followed, Judge Vaughn Walker of the U.S. district court in San Francisco conducted a sort of show trial, ignoring all relevant precedents in holding that the protection of conjugal marriage rests on irrational bigotry.
This decision went too far even for a Ninth Circuit panel led by the oft-reversed Judge Stephen Reinhardt. The appeals court affirmed Judge Walker’s decision but did not imitate his reasoning, holding instead that, having recognized same-sex marriage, California could have had no rational basis for changing its mind.
The Supreme Court should reverse these lower-court rulings, and straightforwardly affirm the right of the people in any state to act, constitutionally or legislatively, to adopt the traditional view of marriage as a relationship oriented toward procreation. The justices need not themselves hold that view — they may consider it outmoded or rationally inferior to a conception of marriage that treats it first and foremost as an emotional union of adults — to see that the Constitution erects no barrier to it, and that states therefore have the freedom to act on it.
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