We should be gravely concerned about the tide of judges invalidating state laws that define marriage. The recent flood of these rulings will, I fear, seriously weaken our constitutional government. I will not address the pros and cons of same-sex marriage. Rather I speak of the constitutional basis these courts are using — improperly, I believe — to overturn duly adopted state laws pertaining to marriage.
The purpose of our written constitution was to create government by the rule of law rather than the arbitrary rule of man. Equal protection is a principle essential to the rule of law.
Legislatures, and in some limited cases the public, pass laws. Of necessity, there is a check on legislative powers — judicial review of laws for constitutionality. When a court considers invalidating a law, it must proceed with great restraint and deference to the will of the people expressed in the law before them. Judicial proceedings do not allow for public input; they address specific facts and parties. Judicial decisions are not usually meant to be the comprehensive law of the land and are often argued, made and issued in obscurity. Judges are not answerable to the people as legislators are. The public cannot at a later time change or revoke a judge-made constitutional law. By holding a law unconstitutional, the court takes the matter out of the people’s hands.
Some state legislatures have recently made same-sex marriage legal through established legislative procedures with the attendant public comment. Those who oppose the legislation have electoral and political remedies to reverse or modify such laws. By contrast, in the states where judges have changed marriage laws, the will of the people has been summarily overturned, leaving dissenting citizens with no legislative or political remedy.
When a court considers whether equal protection requires changing an important legal or cultural institution or practice such as traditional marriage, judges typically consult such things as established legal precedents, national and community mores, relevant traditions, the historical level of societal acceptance, historical practice and theory, the views of the drafters of the Constitution, and relevant public practices when the Constitution was adopted. You can see that a judge can bring almost none of these traditional supports for same-sex marriage. Centuries of cultural, social, legal and religious belief, tradition and practice nearly unanimously declare that marriage should be defined as between one man and one woman. Same-sex marriage has been an issue for the public for a very short time, only 10 or 15 years. It has been allowed in the U. S. for only a few years in a few states. We all know the outcomes and effects of traditional marriage over centuries. However, none of us knows the effects of same-sex marriage — on traditional marriage, on children, on adoption, on divorce, on the laws of inheritance and a millions other things. Nor do we know what other things will follow by changing such a foundational element of our civilized society as traditional marriage.
Thus, a judge wishing to legalize same-sex marriage can only rely on his and some other citizens' feelings that it is unfair to withhold the benefits of marriage from same-sex couples. In so doing, the judge has merely exercised his or her super-vote to overrule the considered action of the majority (a very large majority in Utah). Such an approach reduces the majestic doctrine of equal protection to simple politics. When equal protection means only tolerance of any good faith position, it will have no meaning. By allowing everything, it will exclude nothing. Liberals who cheer these easy victories for same-sex marriage will, I predict, one day see conservative judges employ this new, cheaper version of equal protection to legitimize right wing political causes obnoxious to the political left.
This breathtaking expansion of equal protection will put laws enacted as the considered will of the majority at the mercy of a few judges. Judicial confirmations will become mere political vettings. Presidents and senators will pick political loyalists rather than great jurists. The rule of law will increasingly become the rule of men and women in black robes.
Greg Bell is the former lieutenant governor of Utah and the current president and CEO of the Utah Hospital Association.