One year after United States v. Windsor, in which the U.S. Supreme Court invalidated part of the Defense of Marriage Act (DOMA), federal judges are having a field day striking down state constitutional provisions and laws that define marriage as between one man and one woman – notably in Texas on February 26, and also recently in Utah, Oklahoma, and Virginia.  While some on the bench have had the temperance to stay their judgments pending appeal, their problematic reasoning and faulty extrapolations from Windsor are cause for grave concern.

Advocates of same-sex marriage, and the judges who rule in their favor, invoke the constitutional guarantee of equal protection under law.  This is a fundamentally incorrect framing of the issue.  Persons who are homosexual are not denied the right to marry in any state.  They can marry whomever they please, subject to regulations on age, consanguinity, bigamy, and the like.  The historical inability to marry a person of the same sex was never a legally imposed restriction akin to anti-miscegenation laws (rightfully held unconstitutional in 1967) but was, rather, a self-evident and redundant fact inherent in the definition of marriage itself.

Consequently, those who advocate for same-sex marriage do not actually seek rights to equal protection under law; rather, they seek to transform the definition of marriage.  Even Goodridge v. Dept. of Public Health, the Massachusetts case that first created same-sex marriage in 2003, acknowledged that its equal protection holding could not make sense without changing the common-law definition of marriage.

Windsor, in the same vein, describes states that have established same-sex marriage not as having permitted equal access to an existing marriage regime, but as having “englarge[d] the definition of marriage.”  In illustrative essence, supporters of same-sex marriage are less like the heroic Rosa Parks, who asserted her equal right to a seat on a bus, and are instead more like a character who asks the bus company to remodel its fleet into double-deckers before he boards.  By this more proper framing, courts are wrong to use equal protection analysis in cases brought by those who seek to change the definition of marriage.

But didn’t Windsor base its holding on equal protection?  Yes, but that case involved persons legally married under state law who were seeking equal treatment under incidents of federal law.  The redefinition of marriage was limited to the federal law, and was more accurately an “undefining” of marriage, because the power to define domestic relations does not historically reside in the federal government.  The fundamental and exclusive role of states in defining civil marriage was not questioned and, in fact, was given deference.  Equal protection considerations were thus appropriate to scrutinize federal treatment of someone who was already legally married in the eyes of the entity with the authority to define marriage – her state.

Even if a court does use equal-protection jurisprudence to review states’ definitions of marriage, it should not come to the conclusion that a redefinition to include same-sex marriage is constitutionally required.  In his opinion on February 26, Judge Orlando L. Garcia of the Western District of Texas wrote that “without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our U.S. Constitution.”  On that there is no argument.  The problem, however, is that legal defenders of traditional marriage are prevented from effectively arguing that there is a constitutionally permissible “rational basis” between a heterosexual definition of marriage and a legitimate governmental purpose.  They are thus prejudiced in court and declared to have acted with unconstitutional animus.  But how are they prevented from fully expositing the rational reasons for which a government may legitimately uphold the traditional definition of marriage?  By the popular silencing of their rationale at the hands of same-sex marriage supporters, by the reshaping of the legal landscape by its advocates in government, and by the historical weakening of marriage by the states themselves.

Rational reasons for a state to support a monogamous heterosexual definition of marriage exist and do not require the input of a particular religious tradition – but they are being suppressed.  Government’s purpose for establishing marriage is not for it to be an instrument of personal gratification or relational sentiment (though it may incidentally be that).  Rather, the governmental purpose of marriage is to be an institution that helps economically and socially secure the progeny and condition of humanity for the good of individuals, families, society, and the species.  As a result, the creation and rearing of the next generation of humanity has always been essential to marriage (and, to those who would here interject to say that people who cannot have children can get married, one might point out that impotence is an historical ground for annulment).

Whether by adoption or science, same-sex couples can raise children.  Opposition to legally enshrining that circumstance, however, can be a rational policy without ill will.  Yet few people would know that because social scientists in places of academic power actively silence studies that indicate that, in general, the optimal parental arrangement for children is to live with a mother and father.  The Weekly Standard exposed and elaborated upon this trend in 2012.

This sort of silencing and shaming of people who use reasoned policy considerations to support the definition of marriage, which was almost universally assumed until 2003, is, in fact, widespread.  For example, the Heritage Foundation’s leading voice on marriage, Ryan Anderson, is a Princeton-educated co-author of the thorough 152-page “What is Marriage?,” yet he is often met with condescension on television (at best) and protests on campuses rather than robust dialogue.  An adequate assessment of whether or not a government ought to create same-sex marriage should also, it would seem, include an understanding of what precisely homosexuality is.  That is a profound question that deserves respect and light.  Since the 1970s, however, rational scientific consideration of this question has dried up and become a political third rail.  In its place, both sides in the marriage debate have taken up emotionally driven definitions and understandings of homosexuality.

Not only have same-sex marriage advocates silenced and shamed their opponents to prevent the exhibition of constitutionally valid policy rationales, but they have also shaped the legal playing field in prejudicial ways.  It was explained earlier that the heterosexual character of marriage was historically not a legally imposed restriction, but rather an inherited definitional assumption, and that, therefore, equal protection analysis under the Constitution is inappropriate.  Since efforts to establish same-sex marriage have begun to come to fruition, however, states that oppose those efforts have been forced to affirmatively define marriage as between one man and one woman.  As a result, for only maintaining a millennia-old definitional truism, a state is more likely to be judged as having affirmatively enacted a restrictive and discriminatory law.

In a way, same-sex marriage supporters force their legal opponents to shoot themselves in the foot.  Courts should not let this practically unavoidable maneuver distort the framing of the issues.

A similar phenomenon could occur when states are temporarily compelled to recognize same-sex marriages but then later resume adherence to the pre-existing definition.  The California saga that culminated in the demise of Proposition 8 involved years of back-and-forth, and currently a thousand couples in Utah are in “legal limbo.”  While adverse court decisions do have the power to declare a past marriage null, the tentative existence of that marriage for a time may still affect judges’ reasoning.

Marriage is constitutionally a fundamental right.  Though what marriage is is still defined by states, a state that has been judicially forced to recognize some same-sex marriages faces a new legal landscape.  Once the definition of a fundamental right has been broadened, it may be more difficult to argue for its retraction than it would have been to argue for keeping the pre-existing status quo.  For then, again, the state’s action is more akin to an affirmative restriction than simply maintaining an inherent state of affairs.  Similarly, if a state in such a situation does not wish to nullify same-sex marriages contracted within the key window, it can be more difficult to argue that other same-sex marriages should not be granted in the future.  The state definition would have already changed, the rational link between governmental enactment and a legitimate purpose would be weakened, and equal protection concerns would be much more evident.  Thus, here again, proponents of same-sex marriage reshape the legal playing field to their advantage.

Another form of both silencing and landscaping is effected when attorneys general refuse to defend the marriage laws duly enacted by their legislatures or public referenda.  This has occurred in multiple jurisdictions and been endorsed federally.  Judicially oriented decision-making of this magnitude by an executive denies the standing law of traditional marriage, and its supporters, a voice in court.  It prevents rationales from being presented by the parties most capable of doing so and puts the rule of law into doubt.

Lastly, in fairness, states that aim to preserve the pre-existing definition of marriage are also hindered from successfully proffering their legitimate reasons by their own policy histories that have weakened marriage and its connection to its traditional purposes.  No-fault divorce, contraception, non-enforcement of adultery laws, and other developments over the last fifty years have diminished the public’s perception of marriage’s governmental purpose and made it more about sentiment than about maintaining two parents for children’s creation and well-being.  That, however, should not automatically make it any less rational in a court’s eyes for a state to determine that some points along the path of transforming the marriage regime are unadvisable.

Within the next year or two, the Supreme Court will blow the whistle and settle many of these matters, at least for a time.  Until then, field day is on.