March 21, 2013
Column #1,647
(first of two parts)
Marriage Before the Supreme Court
By Mike McManus

America has been debating the definition of marriage with greater and greater intensity over the past decade.

“The traditional conception - which has prevailed throughout recorded history…holds that marriage is by its nature a gendered institution. Its central purpose – its raison d’etre – is to channel potentially procreative sexual relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation.”

That’s how the Alliance Defending Freedom summarized its support for California’s Proposition 8 in a brief before the Supreme Court. After a long fight in 2008, Californians supported Prop 8’s Amendment to the state’s Constitution, stating “Only marriage between a man and a woman is valid or recognized in California.”

Opponents of Prop 8 argued in their brief for a genderless conception of marriage that essentially is unconcerned with children. They declared marriage is designed to recognize and promote the “liberty, privacy, association…commitment” and “love” of adult couples.

They noted that when the California Supreme Court invalidated an earlier statute limiting marriage to a man and a woman on May 15, 2008 that “more than 18,000 same-sex couples were married.” When Prop 8 was passed November, 2008 it “relegated same-sex couples” to seeking “domestic partnerships” with “nearly all the substantive rights and obligations of a married couple, but are denied the venerated label of `marriage.’ and all of the respect, recognition and public acceptance that goes with that institution.”

That redefining of marriage is gaining rapid acceptance. Three states voted for same-sex marriage in November, including Maine, where voters reversed a referendum that had rejected the redefinition of marriage just three years earlier.

Indeed, a Washington Post-ABC News poll reported this week that 58% of Americans support same-sex marriage. As recently as 2010 most Americans opposed it and in 2006, the public opposed it by 58% to 36% - the mirror opposite of this week’s poll. Fully 81% of adults between ages of 18 and 29 support such unions.

Most Republicans continue to oppose it, but among Republicans under age 50 a slim majority back same-sex unions. The Republican Party’s 2012 platform called for a constitutional amendment to ban same-sex marriage. However, on Monday, Republican leaders acknowledged a “generational difference within the conservative movement about issues involving the treatment and the rights of gays.”

On the very day that Republican leaders urged embracing different points of view, Ohio Republican Senator Rob Portman announced support for same-sex marriage, a change of position two years after learning his son is gay.

However, four-fifths of the states – 41 states - have upheld the traditional definition that marriage is the union of one man and one woman in state law, 32 of which have put it in their state constitutions.

Yet nine states have elected to engage in the social experiment of genderless marriage, giving gays and lesbians the right to marry.

Given that new reality, “We need the Supreme Court not to impose same-sex marriage on the country, but to allow Americans to continue to debate this issue as they have been doing through our democratic process,” argued Austin Nimocks, senior counsel for the Alliance Defending Freedom.

Forty years ago, there was a similar debate underway in America about abortion. Three states had declared abortion to be legal – New York, Washington and Alaska and 14 others adopted laws allowing abortion under certain circumstances. It was being debated in many state legislatures.

However, the Supreme Court cut off the debate by ruling in Roe v. Wade that abortion was legal in all 50 states. Similarly, the Supreme Court could rule that “the right to marry is fundamental for both heterosexuals and for gay men and lesbians,” as one brief put it.

Would it have been better for the nation, if the court had allowed the abortion debate to continue, with each state coming to its own conclusions about an issue on which reasonable people who are passionately pro-life or pro-choice could have debated the issue democratically rather than having the Supreme Court declare a right to an abortion that can be found nowhere in the Constitution?

Similarly, the central marriage question being debated next week at the Supreme Court is who should decide the winner of this issue? Nimrock argues, “We don’t need the Supreme Court to offer a 50-state solution on marriage. The citizens of this country are well equipped to debate marriage policy through their democratic institutions. We are just beginning the debate in this country about the meaning and importance of marriage.”

I fervently believe that traditional marriage is essential to protect children. The best that can be hoped for is that the court will allow each state to come to its own conclusions.