The Constitution leaves the Definition of Marriage to the States

000“For the Court to strike down laws defining marriage as the conjugal union of husband and wife would be to abolish the idea that men and women matter, equally, in the lives of children they create. And, it would be both a judicial usurpation of legislative authority and a federal intrusion into a matter left by the Constitution in the hands of the states”. Robert P. George, McCormick Profess of Jurisprudence and Director of the James Madison Program in America Ideals at Princeton University

If marriage were simply a form of sexual romantic companionship or domestic partnership, then the equal protection clause of the 14th Amendment would require the Supreme Court to strike down state laws limiting marriage to male-female partners.  There would be no principled basis for distinguishing male-female marriage from same-sex  marriage or for that matter from multiple-party marriages. 

Historically, however, our matrimonial law has not conceived marriage as a mere sexual, romantic companionship or domestic partnership, nor is there is anything in the text, logic, structure, or historical understanding of the Constitution that commits the nation to such a conception of marriage.

In fact, the Constitution does not attempt to settle the question of how marriage should be defined. It dictates no choice, it doesn’t forbid polygamy, it does requires states to permit it, it doesn’t choose between marriage conceived as a genderless institution and marriage as the conjugal union of husband and wife. Rather, the Constitution leaves the choice to the judgment of the people and their elected representatives.

The states understood and defined marriage as a relationship shaped by the needs of children for mothers and fathers rather than as an institution whose purpose was to serve the interests or desires of adults by facilitating sexual-romantic companionship.

Our laws, including those under review in the case now pending before the Supreme Court, reflect the judgment that marriage is the conjugal union of spouses, rooted in the sexual-reproductive complementarity of male and female, which brings together a man and woman as husband and wife to be father and mother to any children born of their union.   As a social institution, it aims to secure for children the inestimable blessing of being brought up with both maternal and paternal influences and care.

Throughout history and across cultures, marriage has been defined as a conjugal partnership precisely because the sexual-reproductive complementarity of man and woman has been understood as central to it.   That has been true even in cultures that permit polygamy.

As a matter of constitutional law, defenders of state marriage statutes need not show that the conjugal conception of marriage is superior to the idea of marriage as a mere sexual-romantic companionship or domestic partnership. The question before this Court is whether the Constitution requires states to adopt the latter conception of marriage and clearly, IT DOES NOT!   Therefore, there is no constitutional warrant for the Court to impose a genderless conception of marriage on the country, even if a majority of the Court happens to favor such a concept as a matter of social policy.   You can read Professor George’s article in full at this link.

In a rare burst of unguarded liberal honesty, the New York Times Editorial Board, just declared the traditional family model of a wedded mother and father raising children together in the same household an “absuridy.”   By branding traditional bonds of motherhood and fatherhood “absurd,” the Editorial Board is demonstrating that it not only has lost sight of its target audience, it has lost touch with reality altogether.   The only real mystery about the New York Times’ statement is why anyone would continue to pay for that fish wrapper.


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