Even though, earlier this month, the Supreme Court denied appeals from five states seeking to retain their bans on same-sex marriage, the issue of same-sex versus traditional marriage is not going away.
How this issue is ultimately decided will depend on several factors, but one overlooked factor is this: According to our Constitution, state governments, not the national government, are responsible for issues such as the definition of marriage. In the Federalist system the Founding Fathers created, the national government is only responsible for things affecting the nation as a whole — national defense, foreign policy, etc. — while (Federalist #45) all issues regarding “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” are “reserved to the several States.” Meaning the states have primacy over issues concerning what today we might call the health, safety, general welfare, and even the morals of their citizens.
So any definition of the people’s “lives, liberties … internal order [and] improvement” would include the institution of marriage, making it a state issue. Also, because marriage and family are foundational to a functioning society, the members of that society — that is, the people in each state — and not the courts, should decide the issue through the political process, i.e., statewide referendums, ballot initiatives, state legislatures, etc. It is unfathomable that the fate of traditional marriage, an institution going back to Biblical times, should be determined by nine black-robed judges.
Granted, the Founding Fathers understood that change, including cultural change, was inevitable in America, and if, through popular referendums, ballot initiatives or other political vehicles, a majority of the people in a state approve of same-sex marriage, the Founders would say, “So be it.” They wouldn’t like it, but they would accept it as being within the parameters of the governmental system they created.
Provided it was a political decision, not a legal one, made by a majority of the residents in each state. Indeed, a reason the states have jurisdiction over these kinds of issues is because each state will decide them differently. That means citizens within a state who dislike that state’s decision can “vote with their feet” and move to another state whose solutions to these issues were more to their liking. If California’s voters approve gay marriage, and you disapprove, move to Texas, where traditional marriage is upheld. If Texas’s voters approve mandatory school prayer and you disagree, move to Massachusetts.
It’s simple. The national government should never make decisions that are best left to the 50 states, and the courts should never make decisions that are best left to the people. Marriage is one of those decisions.
