By a vote of 267 to 157, with 47 Republicans joining the majority, the House has passed a bill requiring all state governments to stick with the redefinition of marriage that the Supreme Court ordered in 2015. The best thing that can be said about this legislation is that it is legislation, not an edict from a judiciary usurping legislative authority. Senate Republicans should nonetheless oppose this bill, because these congressmen are making a mistake.
Or rather, they are making several mistakes. The bill raises four distinct questions for federal legislators. Is the judicially imposed definition better or wiser than the older one? If so, should the federal government insist that states adhere to it? Have the downsides of this specific legislation received sufficient consideration? And given that the Supreme Court’s 2015 decision in Obergefell v. Hodges continues to have the force of law, does passing the bill serve any good purpose? The answer to all four questions is no.
Start with the first question. We do not deny that committed same-sex relationships can and often do have much of great value: affection, mutual caregiving, love. Some same-sex relationships clearly exceed some opposite-sex ones in these important measures. But marriage as an institution, including its governmental dimension, does not exist to award certificates of worthiness on loving relationships. Love needs no license from the state. The stipulation that marriage unites two people, and only two people, does not rest on any official determination that three or more people cannot have the same feelings for one another, provide the same care, and so on — as “throuples” have increasingly insisted that they can since Obergefell.
It rests instead on the biological realities of our sexual dimorphism and complementarity, the economic needs of mothers and children, and the long train of human history, experience, and tradition. The reason it was considered the union of one man and one woman until just yesterday is because such unions, and only such unions, often produce children. Other, varying rules surrounding it — age restrictions, bans on participating in simultaneous marriages, and so forth — built on that basic reality. The Latin word matrimonium spells out that motherhood and the family were at the heart of it, that marriage was meant to foster and support the bonds of the natural family. The laws and rituals around marriage reflect the interest of an entire society in the estate of each marriage, and impose obligations on that society far beyond any normal contract between two consenting adults.
The law never took a purely instrumental view of marriage, one that regards it as worthwhile only insofar as it yields children. But it did regard it as oriented toward child-rearing. It aimed, in a way that grew less coercive over time, to encourage adults to arrange their lives so that as many children as possible are raised and nurtured by their biological parents in a common household.
Same-sex marriage was not the first step away from this model of marriage. Many social trends and legal developments have weakened the links between sex, marriage, and child-rearing. But that weakening has generally been regrettable rather than laudable. The need for a marriage culture that channels adult behavior in a way conducive to the well-being of children remains as vital as ever. Same-sex marriage obscures the purpose of marriage as an institution and therefore makes the institution less capable of achieving it.
And more bad effects have followed in its train. The bullying, unfairness, and sheer illogic of the trans movement have all drawn strength from same-sex marriage. The attempt to give same-sex couples the same legal and social dignity as married couples had demanded the expansion, and diminished the possibility of criticism and correction, of a market in human flesh: embryos and surrogates, an entrepreneurial field in which the most vulgar eugenics is practiced.
The facile argument that government recognition of same-sex marriages “does not affect you” has turned out to be risibly untrue. Countless lawsuits after Obergefell have worked to diminish the religious liberty of Jews, Muslims, and Christians who hold on to the historic moral and metaphysical commitments of their faith. It is not just bakers and florists, but religious universities, schools, religious orders, and adoption agencies that have faced all manner of legal threats since this alteration to our laws.
All of these are reasons for governments to adhere to the older view of marriage, and reasons for the federal government to allow them to do so. Allowing states to reach different conclusions on this issue would not cause chaos or prove unworkable, as it did not in the years just before 2015. Congress need not legislate a national policy.
And there are still unanswered questions about the Respect for Marriage Act. Its promise of total reciprocity among states, without exception or limitation, suggests the effacement of laws that regulate the age of consent for marriage and prohibitions against consanguineous marriages. Have proponents scrutinized it sufficiently?
There is, finally, the questionable need for the policy. As constitutionally dubious as Obergefell was, and as welcome a restoration of legislatures’ ability to preserve a better understanding of marriage would be, the prospect of the decision’s reversal is vanishingly small. Democrats are pretending otherwise because a grand total of one justice of the Supreme Court has written that Obergefell should be rethought.
He said so in his concurring opinion in Dobbs, in which a majority of justices voted to overturn Roe v. Wade. But Obergefell is much less vulnerable than Roe was. State legislatures constantly probed the limits of Roe. Nothing similar has happened to Obergefell. No cases about it are winding their way through the courts. If one ever appeared and the Supreme Court took it, even conservative justices could reasonably conclude that the case for overturning it is weaker than was the case for overturning Roe, which unjustifiably restricted legislative authority to protect human life.
What, then, is the point of this bill? It appears to be to demoralize social conservatives, to cast the opponents of same-sex marriage as a dwindling band of bigots. Republican politicians should not go along with it.
Reporting from National Review.
