My view: Marriage issue belongs to Americans, not judges

Published: Sunday, Nov. 23 2003 12:00 a.m. MST

In Goodridge vs. Department of Public Health, the Supreme Judicial Court of Massachusetts announced that the "everyday meaning of marriage" is "arbitrary and capricious." Marriage, in short, is unconstitutional because it is irrational.

According to the dictionary, "irrational" means "affected by loss of usual or normal mental clarity." Apparently society has lacked normal clarity for centuries. Thankfully, we have Supreme Court justices, both state and federal, to save us from ourselves.

But who will save us from them?

Goodridge, at least in form, does not establish the unconstitutionality of marriage for every state of the Union. But the authority cited consists of Supreme Court cases — most importantly Lawrence vs. Texas. That case declared four months ago that homosexual sodomy is a constitutional right because all consensual sexual relationships are equal.

Therefore, if Goodridge has properly quoted and interpreted Lawrence, marriage is irrational not only in Massachusetts, but in every other state as well.

Numerous sexual relationships have intrinsic value for the sexual partners involved. Just visit the Internet. Marriage, however, has focused on one sexual relationship — the union of a man and a woman — whose intrinsic value extends to society as a whole.

Civilization requires procreation. Procreation, in turn, requires union between a man and a woman. Homosexual relationships are sterile. Here, if not in constitutional law, not all sexual relationships are equal. Moreover, experience and scientific research demonstrate that the best environment for the rearing and training of a child is within a stable marriage between the child's biological father and mother. Historically, these simple facts have provided more than ample grounds for the rationality of the social benefits conferred upon marital unions.

Goodridge, however, declares that lawmakers may no longer base public policy on "providing a 'favorable setting for procreation' " or even on "ensuring the optimal setting for child rearing." The state may not link marriage and procreation because such linkage "confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently . . . inferior to opposite-sex relationships." Government cannot acknowledge biology, says Goodridge, because that very acknowledgement suggests that heterosexuality may have more social utility than homosexuality.

The reach of Goodridge exceeds the judicial grasp. One need not believe (contrary to the Goodridge court's assertion) that homosexual relationships are "inherently unstable" or "inferior" to marital relationships to conclude that (however "worthy of respect") homosexual relationships differ — quite significantly — from a union between a man and a woman. Biology, not destructive stereotypes, has decreed that children spring from one union and not the other. The "everyday meaning of marriage," in sum, is irrational only to the extent that basic biology is irrelevant.

Who, then, should decide whether (and to what extent) biology is relevant to the meaning and status of marriage?

Although not evidenced by the self-confident tones pervading the opinions in Lawrence and Goodridge, the due process and equal protection clauses of the federal Constitution were not written to ensure victory for the theories of social justice currently preferred by the 6-3 or 4-3 majorities of various courts. Neither clause expresses any discernible judgment regarding the relative values of heterosexual and homosexual conduct. Neither clause addresses the intricate social roles of marriage. But, by inventing and enforcing "rights" nowhere evident in the language of the Constitution or the history and tradition of the American people, lawyers, law professors and judges have slowly eroded democratic control over an ever-expanding range of fairly debatable controversies. Marriage is just the latest victim.

The drafters of the Constitution wisely foresaw that the people of America could and would disagree on these and many other issues. The Constitution, furthermore, provides a mechanism for the resolution of these and other divisive social issues. That mechanism is not a courtroom. It is political debate.

The expanding reach of American constitutional law — as exemplified by decisions such as Lawrence and Goodridge — has rendered the public increasingly oblivious to its constitutional role as the primary source of decision-making power. America drafted a written Constitution in 1789. Does it still have one now?

Proper regard for the political structure established by the United States Constitution demands that Americans, whatever their views, engage in a vigorous constitutional debate regarding the meaning of marriage in America. The social, political, moral and ethical values at stake are too important — and too hotly and honestly contested — to be resolved by a simple majority vote of seven or nine people wearing black robes.


Richard G. Wilkins is a professor of law at Brigham Young University.

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