November 01, 2004,
On Election Day, citizens in eleven states will vote on measures to preserve the legal definition of marriage as the union of one man and one woman. These referenda will take place in almost every region of the country.
Most Americans know why these referenda are being held. Since 1993, judges in four states Alaska, Hawaii, Vermont, and Massachusetts have tried to redefine marriage to include same-sex unions, and new cases are pending in other states. To most Americans, the judicial abolition of traditional marriage laws is both undemocratic and unprincipled. This perception has fueled the movement for referenda by which the people of the states seek to preserve marriage and their right to self-government against the depredations of liberal judges.
To judge from the marriage referenda already held in other states, the proposals to protect marriage will pass by overwhelming bipartisan majorities. Most Bush voters will support these proposals. Many who are at least considering a vote for John Kerry will join them.
But pro-marriage Kerry voters are in a curious position: If their support for Kerry enables him to win the presidency, his victory will almost surely nullify their vote to protect marriage. If Kerry is elected, the marriage referenda will have been a waste of time, because a Kerry presidency will give us same-sex "marriage" in all 50 states.
Senator Kerry would deny this. Although in 1996 he likened opposition to same-sex marriage to different kinds of bigotry, in his campaign he has been careful to say that he opposes same-sex marriage. Because of the public's overwhelming opposition, Kerry's position is politically prudent and his liberal supporters understand that. They are confident rightly so that he will do nothing to stop the judicial imposition of same-sex marriage, whether by state supreme courts or the Supreme Court of the United States.
If elected, Kerry will almost certainly have the opportunity to make multiple Supreme Court nominations, and Kerry nominees will do what is needed to compel the legal recognition of same-sex unions as marriages. Indeed, Kerry's liberal base is quietly counting on it. And they are right to count on it. Throughout the campaign, Kerry has not identified a single action he would take or endorse to prevent the redefinition of marriage by state or federal courts.
The "smoking gun" that proves Kerry's disingenuousness is his vote in 1996 against the federal Defense of Marriage Act. This law, which passed the Senate with only 14 votes against it, protects states from being forced to recognize same-sex "marriages" from other states. (Of course, those who oppose this law are now challenging it in the courts.) Moreover, Kerry has denounced President Bush's proposal to protect marriage by enshrining the traditional definition in the Constitution.
Senator Kerry says that each state should make its own policy regarding marriage and family life, but he carefully avoids saying which branch of state government should set the policy. For most of American history, state legislatures made such policy. They made the policy because the Constitution, on any fair reading, gives them the authority.
But in recent decades, both federal and state judges have taken away or "usurped" the authority of state legislatures on important issues of morality and public policy. An example is Goodridge v. Department of Health (2003), in which the supreme judicial court of Massachusetts mandated same-sex marriage in that state. But this case is simply the most recent in a line of bold usurpations that began with the Supreme Court in 1973. In that year, the Court handed down its infamous decision in Roe v. Wade, which stripped state legislatures of their power to make laws on abortion.
In Roe, the Court manufactured a virtually unrestricted right to abortion. Seven justices nationalized the matter by rewriting abortion law for the whole country. In this enormously controversial decision, the Supreme Court asserted that the Constitution includes a "right to privacy" that while nowhere to be found in the text, logic, or original understanding of the document was violated by state laws protecting fetal life.
Senator Kerry's website conveys his fervent support for abortion rights, the doctrine of "privacy," and the decision in Roe v. Wade. He warns against nationalizing same-sex marriage, but fails to criticize the nationalization of this other controversy. His support for abortion is so zealous that he vows to impose a litmus test in selecting nominees for the Supreme Court: Only resolute supporters of Roe v. Wade will be eligible for appointment in a Kerry administration.
But here is the rub for supporters of marriage who are considering voting for John Kerry. Kerry's "litmus test" practically guarantees that same-sex marriage will be the law of the land. That is because the jurisprudential doctrines that gave us Roe v. Wade also underwrite the theory according to which judges are now striking down state marriage laws. Moreover, jurists and legal scholars who endorse the judicial activism in Roe almost always support judicial activism to redefine marriage. Anyone who knows the lay of the land in state and federal courts and in American law schools can attest to this.
How would the current Supreme Court handle the issue of same-sex marriage? It's hard to predict. In Lawrence v. Texas (2003), the Court struck down a Texas statute forbidding homosexual sodomy, while saying that it was not opining on the issue of same-sex marriage. But, as dissenting Justice Antonin Scalia noted, other language in the Court's opinion seemed to dismantle the structure of constitutional law that would allow states to continue defining marriage as a male-female union.
In any event, we must look beyond the current Supreme Court. If John Kerry is elected president, his judicial nominees "litmus tested" for fidelity to liberal jurisprudence will make same-sex marriage a national reality. They will either force every state to recognize same-sex marriages contracted in other states (e.g., Massachusetts, or states whose judiciaries follow the example of the Massachusetts supreme judicial court), or proclaim a new right to marry someone of either sex. Judges who pride themselves on having discovered a constitutional "right to abortion" that the framers of the Constitution never dreamed of, will have no trouble persuading themselves that the Constitution includes a right to same-sex marriage. And a vote for Kerry is, in effect, a vote for more such judges.
Robert P. George is McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University. David L. Tubbs is a visiting fellow in social and political studies at the American Enterprise Institute.