The recent back-and-forth before the Supreme Court over the issue of gay marriage between lawyers for and against was interesting. As background, when the 6th Circuit Court ruled in 2014 that laws in four states defining marriage as the union of man and woman were proper, that ruling was appealed and the Supreme Court agreed to hear the case.
But in asking questions of the lawyers of both sides, two of the most liberal justices on the court, Stephen Breyer and Ruth Bader Ginsburg, got to the constitutional heart of the matter in their questions to the pro-gay marriage counsel. Traditional marriage, Breyer said, “has been the law everywhere for thousands of years … and suddenly you want nine people outside of the ballot box to require states that don’t want to do it, to change?” Ginsburg noted that traditionally “the court stressed the federal government’s historic deference to states when it comes to matters of domestic relations.”
Good for them both. In the Constitution the Founding Fathers created, there was a clear division of responsibility between the national and the state governments. The national government was responsible for all things national in scope — foreign policy, national defense, regulating interstate commerce, etc. In contrast, the states were given responsibility for (Federalist #45) all things having to do with “the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the State.” Translation: State governments are in charge of the day-to-day issues concerning the “order, improvement and prosperity” of their citizens — what today we might call the citizens’ health, safety, welfare, values and even morals.
Clearly, as Ginsburg noted, the issue of marriage falls under the latter category, meaning each state, and not the national government, should decide that issue individually. If California wants to pass a law that expands the definition of marriage to include same-sex couples, fine. If Texas does not, also fine.
Breyer also touched on an important point when he asked if “nine people outside of the ballot box” should be deciding this issue. Since the institution of marriage is clearly a cultural, societal and values issue — and therefore a political, not a legal issue — it shouldn’t be decided by state courts, but by the people, through a ballot initiative, popular referendum, or other political means.
My guess is the Founders would personally disapprove of gay marriage because they would have thought it undermined the one institution fundamental to a healthy society, the family. But if gay marriage was approved via strict adherence to the necessary constitutional criteria — states not the national government, the people, not the courts — my guess is they would have reluctantly gone along with it.
