One of the ironies of the Supreme Court’s decision in Obergefell v. Hodges is that it is being touted as a victory for civil rights. Surely it’s an unusual civil rights victory that disenfranchises the people of all 50 states on a critical issue. After a mere decade of political debate on the topic of same-sex marriage, the voters have been told that our opinions are no longer needed. Justice Kennedy will tell us what we think.
The violence to democracy is bad enough, but it is greatly compounded by the damage to American federalism. The federal government has no constitutional authority to regulate marriage, nor does it have a roving license to promote “dignity” or “autonomy” or any of the other vacuous phrases contained in Kennedy’s majority opinion. If the Constitution granted anything like that kind of authority to the central government, the document would never have been ratified. In Federalist No. 45, James Madison assured readers that, under the proposed Constitution, the states would remain sovereign over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people” (emphasis added).
Granted, the framers’ vision of federalism is long gone; however, there had been something of a resurgence of federalism in recent decades. The Supreme Court has ruled, for example, that the federal government cannot “commandeer” state officials into implementing federal policy; it has put at least some limits on the New Deal’s expansive Commerce Clause; and, in NFIB v. Sebelius, it finally held that there are limits to the federal government’s fiscal coercion of states.
The rise of same-sex marriage was itself a classic product of American federalism – yet another irony of the current situation. Back when the only federal law on the subject was the Defense of Marriage Act, the states were experimenting with civil unions and holding referenda on gay marriage. In a 2009 article on “blue state federalism,” Emory law professor Robert Schapiro argued that “states have taken the lead” in advancing gay marriage. And that’s exactly the way things are supposed to work, according to none other than . . . Justice Kennedy. In 2013, Kennedy authored the opinion striking down DOMA, asserting that: “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”
What a difference two years makes. Far from being the “exclusive province of the States,” marriage law is now to be defined by the Supreme Court, with no guiding principles other than its “reasoned judgment,” as Kennedy puts it.
The impact of Obergefell will go far beyond the issuance of marriage licenses. Because same-sex marriage is now deemed to be a “fundamental” right, states are forbidden to take any action that infringes or even “burdens” that right. Judges and bureaucrats will soon order states to remove any support, direct or indirect, for institutions that oppose gay marriage. This trend has, of course, been underway for some time – witness the Catholic Church’s withdrawal from the adoption business in states where adoption agencies must place children with same-sex couples. But it’s one thing to be forced out of Massachusetts; now the Church must reconsider its adoption services throughout the US.
Can states grant tax-exempt status to churches that oppose same-sex marriage? Can school vouchers be used at schools affiliated with churches that oppose same-sex marriage? Can a state university employ a professor who opposes same-sex marriage? Remember that the Court now equates laws against gay marriage to the old anti-miscegenation laws. Thus, in the preceding questions, substitute “mixed-race marriage” for “same-sex marriage,” and the answers, I think, are reasonably clear.
State control over education? States will surely be obliged to include in their curriculum some content teaching the new understanding of marriage. Perhaps Heather Has Two Mommies will be required under the Common Core. Who would dare oppose that? Any dissent will be viewed as sheer bigotry.
Rights of conscience? We’ve all heard about photographers and caterers being sued for refusing to facilitate same-sex weddings. Before Obergefell, states had a chance to rein in these suits – or at the very least to balance the conscience rights of religious Christians against the claims of aggrieved couples. But now that gay marriage is a “fundamental right,” that right must be enforced not only by state actors but by private actors in any “public accommodation.” Depending on your state, public accommodations can include restaurants, stores, hospitals, gyms, barbershops, hotels, libraries, bookstores, concert halls, mortuaries, and trailer parks. The zealous bureaucrats in state human rights agencies will demand not only acceptance of, but support for, gay marriage in all these venues. Elected officials will be powerless to stop them.
I don’t mean to suggest that we should throw in the towel on marriage or federalism. But I do think we need to pause to take in the scope of what has just happened. Five unelected judges have imposed a still-controversial definition of marriage on the entire country. There will – and should be – a backlash, but our anger should be focused on the Court’s usurpation of democratic self-government and its implicit threat to religious liberty.