The Court will be likely to issue a decision in June of 2015 with arguments in April. There are two questions that the Court has agreed to take up. “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? Secondly, does that same Amendment “require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”
This is a call for the Court to unapologetically take a stand for federalism—governmental power shared between the national government and the state governments. Federalism is a principle that has been at the very heart of our American government from the beginning. James Madison described it this way in Federalist # 45:
“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite. ..The powers reserved to the several states will extend to …the lives, liberties, properties of the people; and the internal order, improvement, and prosperity of the state.”
This is the federalism endorsed by the Founders, and the Court should restore it to its proper place in American polity by allowing states and their citizens to make up their own minds about same-sex unions.
Such a stance does not require the Court to do anything more than depend upon its own history in this regard. The federal judiciary has largely left the definition of what constitutes marriage—its contours, moral limits, and rationale—to individual state governments. This “hands-off” approach has not resulted in a stagnant status quo. It has not prevented some states from gradually altering their marriage laws over time.
Statehouses throughout the nation have dealt with a variety of difficult and highly-charged questions having to do with marriage. Legislatures have had to address questions concerning marriage such as what shall be the age of consent to marry (marital consent laws), whether a medical exam or waiting period is required, whether “common law” marriage is recognized, whether blood relatives may marry (consanguinity laws), whether one may be married to more than one person at one time (bigamy laws), how a marriage may be dissolved (divorce laws), as well as the current hot-topic—whether or not marriage partners can be of the same sex. State legislators are experienced at considering the benefits and costs of changes to this important institution. They are used to weighing the sentiments, convictions, and apprehensions of their constituents and responding accordingly. Our Founders wisely left such matters to the individual states acting through their chosen representatives, because those state legislators were closest to the cultural pulse of the people affected. The Supreme Court should do the same.
In addition to a respect for state governments and their citizens, the Court should practice self-restraint here if for no other reason than the centrality of traditional marriage to the well-being and stability of American society. The Court should not lend its authority to those who are intent upon jettisoning traditional marriage like so much unwanted cargo. The Justices should resist those who want to make marriage into an “anything goes” institution guided by unfettered personal preference. In short, they should be apprehensive about sanctioning a fundamental change in one of the longest-standing institutions of Christian Western Civilization simply because of a current shrill campaign that falsely claims its origin is in the American tradition of equality. They ought to heed the admonition of Edmund Burke in Reflections on the Revolution in France: “When ancient opinions and rules of life are taken away, the loss cannot possibly be estimated. From that moment we have no compass to govern us; nor can we know distinctly to what port we steer.”
*Dr. John A. Sparks is the retired Dean of Arts & Letters, Grove City College, Grove City, PA. He is a graduate of the University of Michigan Law School, formerly taught U.S. Constitutional History at Grove City College and is a Fellow of the Center for Vision & Values there. He is a practicing lawyer and writes for the Center on U.S. Supreme Court developments. He can be reached by email at: jasparks@GCC.edu.
**This article was first published with Vision and Values.