It is not unlikely that future scholars of social history will identify the public policy controversies in the United States concerning the legal meaning of marriage as the defining social issue for this generation of Americans. Certainly, it has been one of the most, if not the most, divisive, contentious, and fervently debated issues in America during the first sixteen years of the twenty-first century.
Supporters of the legalization of so-called same-sex “marriage” will note that by the time the Supreme Court of the United States decreed in June 2015 in Obergefell v. Hodges, 576 U.S. __, 135 S.Ct. 2584 (2015), that all American states (and, by clear implication, the federal government as well) must permit and recognize same-sex marriage, same-sex couples already could marry in more than two-thirds of the states.
Opponents of same-sex marriage will respond that only eleven states had legalized same-sex marriage by some legitimate democratic processes (e.g., legislative acts or popular referenda). In two-thirds of the states where same-sex marriage was permitted in 2015, it had been “legalized” by judicial order. So the fact that same-sex marriage was legal in so many states in 2015 is only evidence of the personal policy preferences of some federal judges, not necessarily evidence of any significant change in the values or understanding of marriage in American society in general.
Moreover, legal change does not always equate with social and cultural change. The continuing controversy over and significant ongoing opposition to Roe v. Wade, forty-three years after that decision required all states to allow abortion-on-demand, is just one well-known example of the gap between judicial law and the moral order of society.
Supporters of same-sex marriage will point to the growing acceptance of same-sex relationships in society. Polls now show a majority of Americans support same-sex marriage.
Opponents of same-sex marriage will respond that acceptance of a judicial cram-down (fait accompli) is not the same thing as real support of the policy of same-sex marriage. Indeed, it is undisputed and undeniable that popular support for same-sex marriage actually dropped in the wake of the Obergefell ruling that forced all states to legalize same-sex marriage. Something about judges removing an issue from the democratic processes by which the people can debate and decide for themselves is offensive to many citizens of the oldest democracy in the world.
Establishing, maintaining, and defending marriage and marital families is very challenging in the United States at this time. American society is beset with powerful centrifugal forces that pull people, marriages and families apart. Those disintegrating influences threaten not only individuals and families but they endanger our democratic government.
Families are the foundation of modern society. Marital families function like footings and load-bearing walls that secure and buttress the entire culture of the nation. As marriage and marital families weaken, so too the nation deteriorates and the security of the nation diminishes. America’s survival is at risk when marriages are weak and families are insecure.
The civic values necessary for our republican democracy to function successfully depend upon our citizens being imbued with essential civic virtues. While various “mediating institutions” (including churches, schools, civic associations, etc.) support and assist in that educational process, no mediating institution has greater influence or plays a more important role in the process of inculcating civic virtue as does the family – especially the marital family.
When marriage is de-valued or marginalized all of society is at risk. When families are weakened, our entire society, our freedoms, our prosperity, and our way of life also are endangered.
Regardless of what governmental agency or process had legalized same-sex marriage, the legalization of same-sex marriage would (and will, and does) significantly alter the social understanding of marriage and of family responsibilities. However, because the federal courts took the lead and ultimately decreed the legalization of same-sex marriage by judicial fiat, the legalization of same-sex marriage by that illegitimate process both has exacerbated the damage done to society, and has jeopardized social respect and support for the judiciary. At some point, the people will react by rebelling against such abuses of judicial power as Obergefell’s forcing all of the states to legalize same-sex marriage.
To firm believers in the importance of an independent judiciary, of which I am one, that prospect is very discouraging. Our nation needs trustworthy, independent courts to sustain the rule of law. Our nation needs a judiciary that the people can and do trust to make final, fair, and just decisions about difficult, controversial legal issues that arise in litigation about public policy.
In Obergefell, by forcing the legalization of same-sex marriage upon our nation, the Supreme Court has not only wounded the social order of our nation, but it has diminished public respect for the federal courts as an independent, trustworthy judiciary. In the long run, that loss of respect for the honesty and reliability of the federal judiciary may endanger our nation and our constitutional system even more than the dangerous distortion of the legal meaning of marriage.
Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University. He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.