Same-sex marriage advocates are undermining the future of democratic self-government through the courts.

Marriage, the Court, and the Erosion

 of Constitutional Democracy

by Matthew Tuininga

What future does democratic self-government have in our country if same-sex marriage supporters are willing to undermine it through the courts?

There is a lot of good analysis on the Supreme Court's decisions last Wednesday to throw out California's Proposition 8 case (Perry v. Hollingsworth) and to overthrow key parts of the federal Defense of Marriage Act (DOMA) (United States v. Windsor). Same-sex marriage supporters are elated at the incredible progress the gay rights movement has made in recent years. The more optimistic marriage defenders point out that the decisions don't really change much: they simply refer the argument over marriage to the states, to let the democratic process, and civil society, do its work. And who could argue with this sort of federalism?

But of course, both of these positions miss an important fact. In both Supreme Court decisions a law passed by a democratic majority through the democratic process was overturned by judicial fiat. What we are seeing here is yet another case of reliance on nondemocratic power structures in order to overcome or bypass a democratic process that stubbornly refuses to go its way, or at least to go its way quickly enough.

These efforts are frustrating because they are entirely unnecessary. Take Prop 8 for instance. Californians voted by a percentage of 52-48 to enshrine the conjugal view of marriage in the state constitution. But most people believe that this vote, taken in 2008, does not reflect the current attitude of California voters. Californians could pass a new constitutional amendment establishing same-sex marriage.

Instead, state officials decided to overthrow Prop 8 on the basis of violation of gay rights. They did not demonstrate that gay rights, or the definition of marriage as an emotional/sexual bond that they presuppose, appeared anywhere in the U.S. Constitution. Rather, particular officials, with widespread public support, judged that such rights ought to exist, and that their own judgment on the matter trumped the democratic process in California.

Similarly, after a bipartisan majority in Congress overwhelmingly passed DOMA in 1996 (Senate 85-14; House 342-67), and Democratic President Bill Clinton signed it into law, the Supreme Court has seen fit to throw out the element of the law that defines marriage--only for federal purposes--as between a man and a woman.

The reason, as articulated by Justice Anthony Kennedy, is that to define marriage as a one man-one woman union is discriminatory and hateful. Kennedy does not clearly articulate the constitutional basis for this conclusion. The only basis for determining that our marriage definition discriminates unjustly is a definition of marriage as merely an emotional or sexual bond between two persons. But again, there is nothing in America's Constitution to justify this assumption.

As Justice Alito pointed out in his dissent, there are two views of marriage clashing here, neither of which is enshrined in the Constitution.

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