Single-Sex "Marriage": The Role of the Courts

Single-Sex "Marriage": The Role of the Courts* As a Burkean conservative, I entertain a strong presumption against change in long-standing basic social arrangements and institutions. However, I will not directly discuss the merits of the singlesex "marriage" issue, as I can make no claim to special competence in family law. Instead, I will discuss the question whether the refusal of legislatures to grant some or all of the legal benefits of marriage to persons of the same sex is prohibited by either the federal or state constitutions. It might be noted at the outset that the question must surely strike anyone not schooled in constitutional law as strange. Is it really possible that the people of the United States or any state, by adopting a constitution, precluded themselves from defining marriage as the union of a man and a woman and from granting a privileged status to such unions? Further, how can it be that distinguishing between marriage and same-sex unions is forbidden by our constitutions and yet no one ever noticed it until just now? The answer, unfortunately, is that in the make-believe world of constitutional law all things are possible. The central question of constitutional law is the question of the proper role of judges in our system of government. This is the only question common to the myriad issues of social policy-abortion, prayer in the schools, race discrimination, the rights of the criminally accused, pornography, and so on-decided by judges in the name of constitutional law. Every law constitutes a social policy decision made in the ordinary political process; every ruling of unconstitutionality constitutes a rejection of that policy choice and the substitution of a different policy choice by judges. The American people, through the process of representative self-government, express their policy preferences by electing legislators who, on the principle of separation of powers, are supposedly the sole possessors of lawmak ing authority. The policy choices made by elected legislators actually prevail in our system, however, only insofar as they are not, in the name of constitutional law, rejected by our judges.1 The willingness and ability of our judges to have the final say on issues of basic social policy is well illustrated by the recent decisions regarding the meaning and social value of marriage by the Oregon Court of Appeals in Tanner v. Oregon Health Sciences University2 and by the Supreme Court of Vermont in Baker v. State.3 The judgment of Western society-indeed, of most human societies-has always been that the union of a man and a woman as the nucleus of a family, hopefully for life, is essential to the maintenance of a stable, or even a viable, society. Such unions have, therefore, been given a unique status-established, encouraged, and protected by innumerable laws, customs, and practices-making marriage as fundamental an institution to our society and culture as any we have. Many of our modern-day judges, however, acting solely on the basis of their own notions of social progress and the scope of their lawmaking authority, have decided that this is all an unfortunate relic of a less enlightened and less well-intentioned past. How does it happen that these judges, who, after all, have generally been raised and educated in our society, should have such a radically different view of the meaning and value of marriage? Most importantly, what is the source of their authority to make their view determinative such that we are bound to accept and respect it? The answer to the first question is that they are merely affirming their adherence to what they consider the more prestigious side in a cultural conflict. William F. Buckley famously stated that he would rather be governed by the first two thousand names in the Boston phone book than by the two thousand members of the Harvard faculty.4 This is surely one of his wisest observations. The Harvard faculty, brilliant as all the members undoubtedly are, live immersed in a world of words that enable them to imagine situations and reach conclusions so removed from our social norms that to ordinary persons they would be literally unthinkable. …