On April 28, the U.S. Supreme Court will hear oral arguments on whether, under the Constitution, states must grant same-sex marriage licenses and recognize gay marriages legally performed in another state.
This case has serious implications for religious freedom and conscience rights.
In November 2014, the U.S. Court of Appeals for the Sixth Circuit upheld state bans on gay marriage in Ohio, Michigan, Kentucky and Tennessee. Because this decision split with four other federal circuit courts that overturned bans in certain other states, the case is now before the high court.
Currently gay marriage is legal in 37 states. But in 26 states, gay marriage was imposed by the courts – in direct conflict with state law and, in many states, by a vote of the people. In only eight states has gay marriage been authorized by the legislature and in only three by popular vote.
Californians have twice voted to uphold the traditional definition marriage – Proposition 22 in 2000, which affirmed that definition in state statute; and Proposition 8 in 2008, approved by 7 million voters, which enshrined it in the state Constitution.
But after years of court battles, in June 2013, the U.S. Supreme Court declined to rule on the constitutionality of Prop. 8 – stating that its proponents had no “standing” to appeal a lower-court ruling against the measure, even though state officials charged with defending the measure refused to do so. Gay marriage thus became legal in California due to a decision by one federal district court judge in San Francisco, upheld by a three-judge panel of the Ninth Circuit. On the same day, the Court also struck down part of the federal Defense of Marriage Act.
“The federal government ought to respect the truth that marriage is the union of one man and one woman, even where states fail to do so,” Cardinal Timothy Dolan of New York and Archbishop Salvatore Cordileone of San Francisco said at the time.
But absent this, the only hope left now to retain traditional marriage as a matter of law may now fall on the states. The four states in this case make several key points defending their right to regulate marriage:
- The Constitution is silent on the definition of marriage, so the Court may not impose one.
- This case is not about the definition of marriage. It is about who decides if there is to be a change.
- Under our system of federalism authority over regulation of marriage has always been the exclusive province of the states and their citizens.Retaining traditional marriage does not violate the “equal protection” and “due process” clauses of the Fourteenth Amendment. The issue is not about equal rights, but about redefining marriage.
- Retaining traditional marriage does not violate the “equal protection” and “due process” clauses of the Fourteenth Amendment. The issue is not about equal rights, but about redefining marriage.
- It is inconceivable “that the marriage system that has existed for thousands of years—including when the Constitution and the Fourteenth Amendment were ratified—is actually unconstitutional,” as the Michigan brief states.
- States have acted rationally – not with “animus” against gay people – to be cautious before changing such a universal norm.
The Supreme Court itself, in overturning part of DOMA, ruled that gay and lesbian couples married in New York, where same-sex marriage is now legal, are entitled to federal government benefits just as married heterosexual couples are. That decision recognized state authority over marriage laws. If the high court were now to make a national ruling overriding state authority over marriage laws, it would undermine the very federalist principle it cited in that decision.
It would also overstep its constitutional authority, with serious implications for the country:
When the federal courts “create new rights with no constitutional tether,” as the Michigan brief states, we effectively “become a society governed by unelected judges who have assumed the authority to bind society with their own views of how we should interact.” There is, it warns, “a high cost to such judicial actions—a loss of the fundamental liberty of self-governance.”
In addition, such a ruling would tear at the bonds that hold society together. “It is one thing for citizens to accept a sea change in fundamental institutions based on their fellow citizens’ good-faith views,” the brief states, but quite another to be told that “their own cherished beliefs are hateful and contrary to constitutional values.” “That is a recipe for perpetuating this social and moral divide, not for transcending it,” the brief states.
Such a holding would also further erode religious liberty. If a ruling against the states is “predicated on moral claims of irrationality or animus,” the brief states, it will make the enactment of accommodations for churches and other institutions with deeply held objections to this marriage redefinition “difficult at best.”
A ruling by the court is expected in June.