Same-Sex Marriage Is Not a Fundamental Constitutional Right

By Ken Connelly | May 4, 2015 | 11:02 AM EDT

The U.S. Supreme Court will soon decide whether the people of our republic will be permitted to continue to define marriage as the union of one man and one woman.

Up until the dawn of the 21st century, marriage had always been defined that way by diverse cultures and faiths, regardless of time or place. The collective wisdom and experience of the human race teaches us that marriage between one man and one woman is the foundation of a vibrant, self-sustaining society.

That is why the state, although it did not create marriage, has consistently supported and encouraged its flourishing. The Supreme Court has itself repeatedly noted that marriage and the family are indispensable to maintaining a free and properly functioning democratic republic.

In light of this history, it is curious to witness the passivity of some who appear entirely unperturbed by, and even resigned to, the prospect that marriage may soon be permanently redefined by judicial fiat. To make matters worse, others seem positively eager to see marriage redefined absent any real debate or investigation into what marriage is and what it is for.

What G.K. Chesterton said of the proverbial fence we should say to those who would gleefully rush headlong into redefining marriage: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you come back and tell me that you do see the use of it, I may allow you to destroy it.”

But proponents of redefining marriage have no intention of discerning the true point or meaning of marriage—in a very real sense they want marriage redefined precisely because they want to permanently alter its character and replace it with something else entirely. They want the fence down because they don’t like fences. Take marriage opponent Michelangelo Signorile, for instance, who has said that same-sex couples should “demand the right to marry not as a way of adhering to society’s moral codes but rather to debunk a myth and radically alter an archaic institution.”

That is what the push for marriage redefinition is really about, and we owe its proponents the dignity of taking them at their word. We also owe it to ourselves to speak the truth about what is at stake. Redefining marriage will send the message that there is nothing particularly special about the complementary gifts brought by a man and woman, a husband and wife, to a marriage, a child, and a family. It would teach that men and women as such are entirely dispensable, that children do not need or deserve both a father and a mother, and that adult desires trump the needs of the next generation.

Of course, proponents of same-sex marriage have not couched their project in such destructive terms. Such honesty would make for bad public relations. They have rather attempted to sell same-sex marriage as a constitutional imperative. They argue that same-sex marriage is a fundamental constitutional right, that man-woman marriage laws represent a denial of equal protection and signal animus or ill will toward same-sex couples, and that LGBT individuals should garner special solicitude from the court as a particularly disadvantaged class. Every one of these arguments lacks constitutional merit.

Same-sex marriage is not a fundamental constitutional right. Each and every time the Supreme Court has spoken of the fundamental right to marry, it has done so with the clear understanding that marriage is the relationship of husband and wife. Furthermore, to establish that a right is fundamental from a constitutional perspective, the Supreme Court has required that it be deeply rooted in the nation’s history, a requirement that the proponents of same-sex marriage obviously cannot satisfy.

Man-woman marriage laws are not a violation of equal protection, either. That constitutional doctrine requires the government to treat similar groups similarly. But same-sex couples are not similarly situated to opposite-sex couples with respect to the state’s main reason for being involved in marriage, which is the creation and rearing of children. A man and woman can naturally create children and provide those children with both a mother and a father—same-sex couples cannot. Thus there is no constitutional requirement that they be treated the same in this context.

Nor do man-woman marriage laws exhibit animus toward individuals who identify as LGBT. President Obama himself, an erstwhile supporter of marriage as the union of one man and one woman, has recognized that people of good will disagree on the definition of marriage. And from a legal perspective, unconstitutional animus exists only when a law is novel or unusual, and it would be hard to conceive of laws less novel or less unusual than laws affirming marriage as the union of a man and a woman. In fact, these laws are so deeply rooted in our nation’s history that they predate its inception, as acknowledged by the Supreme Court less than two years ago in United States v. Windsor.

Finally, sexual orientation does not merit suspect class status, which would provide special legal protection for LGBT individuals. This argument has been raised many times before, and each time the Supreme Court has declined to adopt it. That is not a surprise, especially because one of the requirements for such treatment is that the group in question must suffer from a lack of political power. That is a claim, to put it bluntly, that cannot be seriously maintained by the LGBT lobby, which is feted by Hollywood, generously and favorably covered by the mainstream media, and consistently supported by corporate America.

Furthermore, this claim for special judicial treatment approaches the risible when we consider that LGBT individuals, who comprise less than 3 percent of the population, have persuaded the Democratic Party to include the redefinition of marriage in its national party platform.

No matter what one’s conclusion as to the propriety of redefining marriage, it must be said that the resolution of this issue by direct political participation is proper in a democratic republic like ours. For as the Supreme Court recently reaffirmed in Windsor, the states, and by extension the people in those states, have the “essential authority to define the marital relation.”

This clear guidance from the Supreme Court as to the centrality of the people’s will on this issue has not stopped proponents of same-sex marriage from seeking to skip the debate and the legislative process entirely, opting rather to redefine marriage through the courts instead. Unfortunately, many lower federal courts have erroneously concluded that Windsor established a constitutional right to same-sex marriage. In so doing, these courts have usurped the right of the people to govern themselves.

The Constitution in no way commands that the Supreme Court issue a 50-state mandate instituting same-sex marriage nationwide. Rather, consistent with its own precedent and the vast majority of other national courts and international tribunals, the Supreme Court should resist the call to judicially impose same-sex marriage and instead uphold the people’s freedom to affirm marriage as the union of one man and one woman.

Ken Connelly is legal counsel with Alliance Defending Freedom, which filed a friend-of-the-court brief in the marriage cases at the U.S. Supreme Court.