Late Edition: A Daunting Task

On November 21, by a 4-3 vote, the Supreme Judicial Court of Massachusetts ruled that the people of that state were constitutionally forbidden from expressing in law their understanding that marriage is the union between a man and a woman (Goodridge v. Department of Public Health). In the commonwealth whose first constitution was penned by that sturdy Christian gentleman John Adams, marriage has been judicially deconstructed to include homosexuals.

The effect of this decision will not be limited to Massachusetts. Under the Full Faith and Credit Clause of the U.S. Constitution, all states must recognize “the public Acts, Records, and judicial Proceedings of every other State.” This means that a marriage license issued to a homosexual couple in Massachusetts is presumptively valid everywhere else. Thus, a one-judge majority in a single state could impose homosexual “marriage” on the entire nation.

The issue will of course be litigated. In recent years, 37 states have sought to limit the reach of the Full Faith and Credit Clause by enacting Defense of Marriage acts, which reiterate the traditional understanding of marriage as the union of one man and one woman. In 1996, Congress enacted an analogous statute declaring its opinion on the subject. Given the ideological propensity of the current Supreme Court, however, these statutes are unlikely to prevail against the due process and equal protection arguments of gay rights advocates.

In two recent rulings (Romer v. Evans and Lawrence v. Texas), a majority of the justices was unable to explain opposition to homosexuality as anything other than the expression of mean-spirited prejudice. In the latter case, decided just last term, the Court ruled that the states may not outlaw sexual activity between consenting adults. In reaching that conclusion, Justice Anthony Kennedy waxed rhapsodic about the virtues of moral autonomism and more or less embraced relativism as the official religion of the United States.

 

Significantly, the first authority cited by the Massachusetts court as it laid waste to 200-plus years of state law and custom was Kennedy’s opinion in Lawrence. How the law ought to treat consensual homosexuality among adults is a prudential question on which reasonable differences of opinion may be entertained. Whether the people, acting through their representatives, should be proscribed from expressing their sentiments on that subject, or on the far weightier issue of marriage itself, is a radically different proposition. But that seems to be the conclusion of the Lawrence majority.

How is it that six judges in Washington and four in Massachusetts feel free to arrogate to themselves the exclusive right to decree national policy on such matters? The presumption of these judicial officers is staggering. Even more remarkable is the apparent passivity of the public, at least in Massachusetts, in the face of the judicial assault upon representative government. Had Goodridge been decided 30 or 40 years ago, it’s a good bet that the descendants of those who fought at Lexington and Concord would have hanged the justices in effigy. Today, even those who disagree with the court’s radical rewrite of the Massachusetts constitution seem not to question the court’s authority to do so. Governor Mitt Romney and many state legislators disagree with the court, but they are unlikely to challenge its arrogant presumption.

Public sentiment in the rest of the nation is not so apathetic. Those who wish to protect traditional marriage may have to seek the enactment of a constitutional amendment. A more difficult political task can scarcely be imagined. Success will require many years of sustained effort against well-financed, entrenched opposition, who will have the additional support of the entertainment industry and most of the news media. It will require one thing more: credible political leadership, most importantly that of the president.

A daunting task indeed, but what is the alternative? The question before the nation goes well beyond the issue of same-sex marriage. The question is whether we shall surrender to the judiciary the power to determine the scope and character of our political culture. If judges can redefine marriage to suit contemporary ideological fashion, no institution, no custom, no tradition, however deeply cherished, will be safe from their future depredations. A people that remains passive before such aggression does not deserve its freedom.

Michael M. Uhlmann

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Michael Martin Uhlmann (1939-2019) served as professor of government in the department of politics and policy at Claremont Graduate University and Claremont McKenna College. Prior to teaching at Claremont, Dr. Uhlmann was a senior fellow at the Ethics and Public Policy Center, Vice President for Public Policy Research at the Bradley Foundation in Milwaukee, Wisconsin, and taught at the George Mason University Law School.

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