Commentary

Same-Sex Marriage Is Constitutionally Illegitimate, the Result of an Anti-Democratic Litigation Campaign

By Lynn Wardle | February 15, 2016 | 4:47pm EST
Gay marriage supporters display rainbow flag in front of the U.S. Supreme Court building in Washington, D.C. (AP Photo/Jose Luis Magana)

Legal marriage is a public institution, created by law to promote public policy and to further social interests including especially the well-being of members of society – particularly of children, mothers and families.  Marriage has great significance for many important private interests, as well, such as for religion, for family ties, family history, and especially for personal identity. 

What is deemed a marriage for purposes of the law may differ from what is deemed marriage for other purposes, such as for a specific academic discipline (such as sociology or ancient history, for example), or for a particular religious faith, private association, ethnic community, or for a specific set of cultural elites, etc.  Just because a union is or is not deemed a legal marriage, this does not prevent any social subgroups from considering it a marriage (or a non-marriage) for their own (extra-legal) purposes.

The battle of what marriage means in the law can be seen from one important perspective as a battle among special interest groups each seeking to have their preferred understanding of marriage endorsed by the law and implemented in the law.  Behind the marriage debate are political-economic interests.

Obsolescence is relevant.  That is, if a huge gap opens up between the law and the moral order of society, one or the other must change or law risks becoming irrelevant.  This “gap” also has profound significance for the legitimacy of the law. The very legitimacy of the law and even possibly the legitimacy of the legal system and its institutions (e.g., the courts, the legislature, the government) will be undermined if the law becomes obsolete.  Thus, if legal marriage deviates profoundly from social understanding of marriage, both the institution of marriage and society in general are harmed.

The American form of government and legal system derive their just powers from the “consent of the governed,” according to the Declaration of Independence.  The principle of popular sovereignty and ultimate popular control is the cornerstone of the American republic.  Thus, the idea and understanding of any legal relationship in American laws, including marriage, should reflect the ideas about that relationship that arise from the people of America – if the law is legitimate. 

Thus, the legitimate understanding and legal meaning of “marriage” in America and American laws should reflect the ideas about marriage and marriage values that prevail among the people of America.  Reference to the consent of the governed is the acid test of whether a new law is legitimate or not.  If that law was enacted by the constitutional consent of the governed – the procedures provided in the Constitution of the United States – it is constitutionally legitimate.  If no, it is not.  It’s really that simple.

By the standard of constitutional process and constitutional consent, the pedigree of same-sex marriage in the United States is very dubious.  Same-sex marriage is the law of the land because five judges sitting on the Supreme Court ordered that all states must legalize same-sex marriage in their June 2015 ruling in Obergefell v. Hodges. Four justices wrote blistering dissenting opinions in Obergefell.  So, by the vote of just one judge same-sex marriage was mandated for all states. 

The history of legalization of same-sex marriage in the United States before Obergefell v. Hodges shows a massive litigation campaign by advocates of same-sex marriage who were repeatedly stymied and frustrated in the efforts to legalize same-sex marriage by proper democratic legislative or popular referendum process.  However, denied popular support by voters and legislators in the states, the supporters of same-sex marriage turned to the courts and filed lawsuits in which activist super-legislator judges (most federal judges) in nearly three-fourths of the states ordered the states to legalize same-sex marriage.  So same-sex marriage in the U.S. is constitutionally illegitimate and is the result of an anti-democratic litigation campaign designed to circumvent the democratic will and constitutional process for making marriage law.  

Polls in the United States reported general opposition to the legalization of same-sex marriage until 2010.  Poll results split between support for and opposition to same-sex marriage in 2010 and 2011, which seemed to be transition years.  Since 2012, however, many polls have reported support for same-sex marriage in the 50-percentile range, with opposition in the 40-percentile range (give or take).  Of course, polling results and results of secret balloting in elections often vary – sometimes significantly. 

There are two key ways by which an institution may become obsolete: First, it may become obsolete by its neglect and non-usage; Second, it may become obsolete by its alteration so that it becomes, for all  practical purposes, another institution – maintaining only the label, title or form of the former institution but in substance and function a very different institution.

The campaign to legalize same-sex marriage – resulting in judicial decisions in lawsuits in three-fourths of the states – shows clearly that marriage is not obsolete in the United States.  Marriage matters, and it matters very much to many people on both sides of the same-sex marriage policy question and other marriage issues. 

The judicial legalization of same-sex marriage also matters because it undermines not only the integrity of the institution of marriage but the integrity of the institution of the courts.  More than either of the other branches of our government, the judiciary depends upon the trust of and the goodwill of the people to function effectively.  Lacking both sword (executive power) and shield (legislative power) the judiciary depends upon willing compliance in most cases.  So when people disrespect the courts and believe that they are biased ideologically or otherwise, the prospects for voluntary compliance with judicial decrees lessen.

So marriage matters and the constitutional processes of our republic also matter. Both marriage and our constitutional system have been weakened by the illegitimate judicial legalization of same-sex 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.

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