The Supreme Court Can't Unilaterally Change the Definition of Marriage
The Court must reject the temptation to legislate
March 26, 2013
During this week's oral arguments before the U.S. Supreme Court, attorneys and justices will consider not just specific laws, but the ultimate question of whether the Supreme Court should redefine marriage in America. That is, they are really struggling over whether the male-female definition of marriage is consistent with a Constitution whose states never saw a same-sex marriage until the last ten years. The Supreme Court should reject the temptation to legislate here, because there is no constitutional basis for requiring that marriage include a same-sex dimension.
The fact of the matter is that after the Defense of Marriage Act (DOMA) became law under President Clinton's signature in 1996, a large majority of states affirmed the male-female definition. Many have done so by amending their state constitutions, and this all took place within the past 20 years.
Let us be clear—DOMA does not affect state laws that govern marriage in any way. DOMA only applies to federal issues, and it is perfectly legitimate, as a matter of federalism, for the United States government to define terms like "marriage" and "spouse" that are used in federal statutes and regulations.
Clearly, one can disagree with DOMA's definition of marriage, and the American people are free to repeal DOMA and endorse same-sex unions. But it would be a different thing altogether for the Supreme Court to redefine marriage.
Recent elections in more liberal states have made it clear that same-sex marriage supporters are fully capable of advancing their social agenda without the courts intervening to shut down debate. These states have the right to redefine marriage, and same-sex marriage proponents have the right to change the federal marriage definition. However, they should not be permitted to force their definitional change onto the entire nation using the courts. As such, DOMA's constitutionality should be upheld.