When federal District Judge Martin L.C. Feldman ruled Wednesday in favor of Louisiana’s ban on same-sex marriages, it was not evidence that anti-homosexual bigotry still reigns. Instead, it just means that at least one judge still takes seriously the essential structure and meaning of the U.S. Constitution.
The decision was correct. Same-sex marriage is not a right guaranteed by the Constitution. Individual states have both the authority and the responsibility to regulate the interplay between domestic relations and the common weal. Since the adoption of the Constitution, it has always been thus.
The Constitution was never meant as a cure-all for every ill. Nor was it meant to protect any purported “right” that somebody could claim or invent. Nor is it a guarantor of social progress (or, for that matter, a specific hindrance thereto). Instead, the Constitution merely, but brilliantly, defines a governmental system through whose republican processes the people can determine and safeguard the best balance of liberty and order.
One can mean no animus against homosexuals, and indeed can support state recognition of same-sex marriage, without asserting that such an arrangement is a constitutional right. Indeed, Judge Feldman made mincemeat of the idea that states are prohibited from defining and regulating marriage as they see fit (absent any discrimination based on race).
Feldman wrote that the Constitution overrides a state’s sovereignty over such issues only if the state fails to show a “rational basis” for its policy. Note that “rational” does not mean “definitive” or “persuasive to everybody” but only that the law at issue must be reasonably “related to the achievement of any combination of legitimate purposes” — and “even if the law seems unwise” to many observers.
Feldman clearly identified the legitimate purposes at the heart of Louisiana’s refusal to recognize same-sex marriage — namely, that of “linking children with intact families formed by their biological parents, and (of) ensuring that fundamental social change occurs by social consensus through democratic processes.”
Others would add that the state has good reason to recognize and promote, in some realms, both the distinctions between the sexes and also the societal value of the complementarity of male and female. (On the former point, for just one example, most people would balk at the forced sharing of restroom and bathing facilities.)
Of course, many people are engaged in spirited debate about just these matters, including the fundamental question of how important it is (or isn’t) to protect that “link” of children to biological parentage to the greatest extent possible. But that’s the point: Where legitimate debate exists about core societal values, and where the Constitution is silent, then … the Constitution’s silence cannot possibly mandate any particular outcome.
But the Constitution’s structure mandates a significant degree of sovereignty to the states. Just as there are different strokes for different folks, the American republic welcomes the idea that, for questions of public policy, different states can produce different fates.
In fact, as Feldman noted, even the landmark 2013 Supreme Court case that marked the biggest win to date for homosexual marriage, U.S. v. Windsor, specifically paid homage to the importance of state sovereignty. Rather than ruling that homosexual marriage is a constitutional right, the high-court majority wrote that Congress may not interfere with a state’s own determination to recognize such arrangements.
As Justice Anthony Kennedy wrote for the majority, “The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.” Citing earlier case law, he explained that “(t)he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘(p)rotection of offspring, property interests, and the enforcement of marital responsibilities.’ ”
When even the Supreme Court case most conducive to same-sex marriage bases its decision on the states’ authority to define marriage, it takes real gall for advocates of homosexual marriage now to assert that states have no such authority.
Whether a state should give legal status to same-sex marriage, wrote Feldman, remains “a decision for which there remains the arena of democratic debate. Free and open and probing debate.”
That is how it should be. Courts should not short-circuit that process.
New Orleans native Quin Hillyer is a contributing editor for National Review. You can follow him on Twitter, @QuinHillyer. His email address is email@example.com, and he blogs at blogs. theadvocate.com/quin-essential.