A few weeks ago, the U.S. Supreme Court heard lively oral arguments over the constitutionality of state laws that keep marriage between a man and a woman. Much more is riding on this case than meets the eye.
For starters, free speech and freedom of religion — twin pillars of our First Amendment — have been curtailed, if not trampled, in some instances by states that have neutered the opposite-gender requirement for marriage. The court must ask itself whether it is willing to unilaterally impose a highly controversial definition of marriage that has abridged dearly held freedoms recognized since the founding of our country.
Regarding religious freedom, Justice Samuel Alito asked Solicitor General Donald Verrilli the impact that legalized gay marriage would have on religious schools.
Verrilli admitted that religious schools might lose their non-profit tax-exempt status. "It's certainly going to be an issue. I don't deny that," he said.
Alito responded, "It is — it is going to be an issue."
Justice Antonin Scalia asked whether ministers would be able to refuse to officiate a homosexual wedding. What happens to the free-speech rights of those who disagree with homosexual marriage? Will a pro-gay marriage ruling chill speech? And what becomes of the democratic process itself?
Chief Justice John Roberts warned that if the court unilaterally redefines marriage, it would end a debate that has been robustly joined by most states in the last decade.
"Closing of debate can close minds, and it will have a consequence on how this new institution is accepted," he said. "People feel very differently about something if they have a chance to vote on it than if it's imposed on them by the courts."
For the record, the marriage question has been on the ballot in 35 states in 39 different elections. Altogether 51,483,777 voters, or 61 percent, favored retaining the man-woman definition of marriage. Same-sex marriage votes total 33,015,412 or 39 percent.
Here in Kentucky, 1,222,125 voters approved marriage (75 percent) and 106 state legislators recently signed an amicus brief supporting our marriage law. Bottom line: When the issue is debated in the court of public opinion and citizens have their say, they have ownership in the decision. That whole "government of the people, by the people and for the people" comes to mind.
Disregarding voters will neither ease tensions nor settle this question. More likely, striking down duly enacted state marriage laws will tear a cultural rift as deep as the infamous Roe v. Wade ruling 42 years ago.
Justice Stephen Breyer asked, "This has been the law for thousands of years. Suddenly, you want nine people outside the ballot box to require states that don't want to change?"
Justice Anthony Kennedy, who many see as the court's swing vote, also pointed out that man-woman marriage has been "with us for millennia. Why should the court impose a new definition and say 'we know better?'"
What are the odds that a handful of unelected judges can maintain their credibility if they overturn millennia of world history; neglect anthropological, biological and sociological arguments, and short-circuit the democratic process? It's a fools' bet for judges to think they can maintain institutional respect while sweeping away three-fifths of state constitutional amendments and 51 million votes.
Unanswered questions and pitfalls, which are no longer hypotheticals, should lead the court to exercise restraint. Should they do so, it will be a victory for the democratic process, the rights of American citizens and their elected officials to recognize marriage policy in their own states.