Gay Marriage: Is the Power of Judicial Review Undermining American Democracy?

Disclaimer: The views expressed below are not necessarily my personal beliefs, but rather, the arguements used against activist courts and gay marriage.

Americans have consistently reaffirmed their belief that the institution of marriage should be a union between a man and a woman. As a democratic country, the laws should reflect the desires and beliefs of the people its citizens. Yet, the power of judicial review threatens this very conception of marriage, giving courts the power to nullify laws in spite of the overwhelming popular opposition. The Federal Marriage Amendment act is necessary in allowing Americans to preserve and protect their own beliefs in regards to the institution of marriage.

According to Senator Orrin Hatch, over forty states have taken measures to preserve the traditional idea of marriage, and a state legislature has never approved of same sex marriages. It is patently evident that the majority of Americans wish to preserve the integrity of the definition of marriage. Recent court activity has proven however, that only a constitutional amendment will guarantee that these American values will not be usurped by activist courts. Judges presiding over these courts disregard the popular opinion of the American people. It is unacceptable for the judicial system to coerce Americans to adopt policies against their own morals.

Currently, the Defense of Marriage Act (1996) protects the institution of traditional marriage by stating: 1. states do not have to recognize legally other states' same sex marriages and 2. marriage is federally defined as the legal union between a man and a woman. Despite this act, activist judiciaries have the potential to neutralize the law against popular moral opinion, and once the Supreme Court rules a law unconstitutional, states can no longer pass similar legislation. It is under this practice in which lies DOMA's imminent downfall. Gay rights activists will eventually bring DOMA before the Supreme Court, threatening the American majority's opinion on the traditional, proper definition of marriage. Once struck down, all Americans must abide by these rulings under the full faith and credit clause, regardless of popular belief.

The threat of these activist courts is real and two prominent cases have already been brought before state courts, challenging state's laws in regards to same sex marriages. These cases suggest that only time stands between DOMA and its demise. In Goodridge v. Dept. of Public Health, the Massachusetts Supreme Court decided that under the Fourteenth Amendment the government could not intrude upon "the deeply personal realms of consensual adult expressions of intimacy and one's choice of an intimate partner" and thus, any discrimination with "access to the protections, benefits, and obligations of civil marriage" deprived a homosexual of "one of our community's most rewarding and cherished institutions". This ruling has influenced such cases as Maryland's Deane & Polyak v. Conaway case, during which the Maryland Supreme Court struck down a 33-year old law prohibiting same sex marriage because it was unconstitutional and discriminatory under much of the same reasons as the Goodridge case. The laws are facing their doom before state Supreme Courts, regardless of the sentiments of the American public majority. The existence of DOMA cannot guarantee the preservation of the definition and understanding of marriage in America. Through the unchecked power of the courts, the American morality has the potential to be ignored and cast aside.

To allow same-sex marriage would bring America one step closer to the destruction of the institution itself. There is significant evidence that allowing same-sex marriage would undermine the characteristics that distinguish marriage from other partnerships: monogamy, commitment, and fidelity. A study commissioned by the University of Vermont of same-sex couples in civil unions supports the idea that "married gay male couples will be far less likely than married heterosexuals to identify marriage with monogamy" . In contrast with heterosexual couples, same sex couples seek marriage largely due to the financial and other benefits with which it is associated. Their partnerships are stable and loving in the absence of marriage, so in large part the only reason for homosexuals to marry is for its legal benefits. Despite its seeming legitimacy, marriage will have lost its relevancy when the sacred institution of marriage becomes a mere means to an end for gay couples to secure financial and legal benefits. Furthermore, there is the distinct possibility that many same-sex heterosexuals will decide to marry to enjoy these financial and legal benefits. Far from a sensationalist argument, as these marriages of convenience already exist in the current marrital climate, it is possible that such marriages will become even more prevalent and thus further drive a wedge between marriage and its traditional purposes.

With the allowance of same sex marriage, there is the potential of handing significant strength to those advocating legalized polygamy and polyamory, group marriage. To suggest so is not to engage in fear-mongering, but to advocate an argument grounded in reality. Those in favor of polygamy follow the gay marriage movement with hopes of imitating their structures and tactics in their own crusade for legal recognition of their own marriages . If same-sex marriage is allowed, polygamists are hopeful that the public will be more accepting of further modifications to marriage law. Logically, once gay couples have a right to legal recognition of their marriage, it becomes difficult to deny that same civil right to polygamists.

Our argument is not based on knee-jerk homophobia, fear, or intolerance. The other side likes to paint, either implicitly or outright, advocates of the Federal Marriage Amendment as bigoted, ignorant people incapable of presenting a practical, logical argument against same-sex marriage itself. Clearly, there is an argument to be made beyond the "gay marriage is just wrong" and "marriage has been between a man and a woman for 5000 years" arguments. A deeper probe shows that there are real concerns about the future of marriage in a post same-sex marriage environment and that it is no exaggeration to declare that same-sex marriage is a serious threat to one of our most sacred institutions; which brings us back to the need for the FMA. If the courts wish to usurp the authority of the people to govern themselves, we as legislators must give that power back to the people. The only way to remedy the egregious abuse of power by the various courts of this land is through amending the Constitution. We cannot sit idly by and watch the courts redefine marriage in a way that may do irreparable harm to it. There is too much at stake here. To continue to use DOMA as a crutch for the advocacy of not amending the Constitution is both dangerous and irresponsible. Were a serious challenge to be made to DOMA, several legal experts agree that it would be found unconstitutional, and that consequently, same-sex marriage would be the law of this land. And so would begin the descent down the slippery slope toward family dissolution.