Given his track record on marital fidelity, former President Clinton is not the person I would consult about “committed, loving relationships.” Clinton used those words in a Washington Post commentary last week. He was urging the U.S. Supreme Court to overturn the 1996 Defense of Marriage Act, which defines marriage as the legal union of one man and one woman and which he signed into law.
In his commentary, Clinton said that 1996 “was a very different time.” No state recognized same-sex marriage and supporters of DOMA “believed that its passage ‘would diffuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.’” Clinton says he now supports same-sex marriage based on justice, equality and the Constitution.
All of the arguments for and against same-sex marriage have been heard and will be heard again on March 26 and 27 when lawyers on both sides of the issue argue two key cases regarding same-sex marriages before the Supreme Court. The justices are expected to rule in June. It will be the court’s most important social and cultural ruling since its 1973 Roe v. Wade decision.
What advocates for same-sex marriage should be asked is whether they consider any other human relationship worthy of similar constitutional protection, and based on what standard. The Constitution doesn’t guarantee the right to marry. States, not the federal government, issue marriage licenses. Current laws restrict “underage” marriage as well as polygamy. If same-sex marriage is approved, what’s to stop polygamists from demanding legal protection and cultural acceptance?
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Justice Antonin Scalia predicted as much in 2003 in his dissent of the Lawrence v. Texas case, in which the court struck down the sodomy law in Texas. So I ask, if “fairness” and “equality” are the standard, isn’t it also “unfair” to “discriminate” against polygamists who wish to live in “loving” and “committed” relationships?
Since we are rapidly discarding the rules for living and social order set down in a book found in most motel-room drawers, what is to replace it? Opinion polls? Clever legal arguments? Fairness? What exactly does “fairness” mean and who decides what’s fair? Many things may seem “unfair,” but not all can or should be addressed by courts.
Last week in Sacramento, Calif., Justice Anthony Kennedy lamented that the Supreme Court is asked to settle too many politically charged issues. Responding to reporters, Kennedy said, “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say. And I think it’s of tremendous importance for our political system to show the rest of the world – and we have to show ourselves first – that democracy works because we can reach agreement on a principle basis.”
The states, or Congress, should be allowed to sort out how they wish to define and license marriage, not the Supreme Court.
But if, as I suspect, the Supreme Court strikes down DOMA, it will be the inevitable result of an increasing number of Americans abandoning the Source of morality and goodness. As Calvin Coolidge said of our Declaration of Independence, “We cannot continue to enjoy the result if we neglect and abandon the cause.”