Marriage, the Court, and the Future
56 Pages Posted: 12 Feb 2018
Date Written: May 1, 2017
Abstract
The Supreme Court’s ruling in Obergefell v. Hodges is a serious setback for Americans who believe in the Constitution, the rule of law, self‐government, and marriage as the union of husband and wife. The Supreme Court has not simply decided a case incorrectly, it has damaged the common good and harmed our republic. The ruling is as clear of an example of judicial usurpation as we have had in a generation. Nothing in the Constitution justifies the redefinition of marriage by judges. In imposing on the American people its judgment about a policy matter that the Constitution leaves to citizens and their elected representatives, the Court has inflicted serious damage on the institution of marriage and the Constitution.
In this Article, I first dissect the argument of the majority opinion striking down conjugal marriage laws. Then I turn to the dissenting opinions, which expose the utter failure of the majority opinion as a work of constitutional law. I then consider two harms that follow from the judicial usurpation of politics on this question before turning to the substantive issues. While the Constitution is silent on which view of marriage is correct, some people simply assert that there is no rational basis, no public reason, for viewing marriage as the union of husband and wife. So after discussing the Obergefell decision itself, I turn to the question at the heart of the debate: the nature of marriage. I sketch a philosophical defense of marriage as the union of husband and wife, I explain why this matters for public policy, and I close the Article by showing three likely harms of the redefinition of marriage, whether it be accomplished democratically or, as in the United States, judicially.
Keywords: marriage, equality, jurisprudence
Suggested Citation: Suggested Citation