The Supreme Court Should Leave How We Marry To The States (Forbes.com) March 25, 2013

At one level, this week’s Supreme Court arguments are about same sex marriage and whether it should now be protected under federal law. But in another dimension, same sex marriage is only the context for a fundamental constitutional, not social, question: who owns and therefore decides about marriage, the federal government or the states? The right answer—that marriage belongs to the states—would decide both cases before the Supreme Court, invalidating as unconstitutional the federal Defense of Marriage Act, but upholding the right of Californians, and by implication other states, to decide whether or not to allow same sex marriage in their state.

Of course this is not the outcome either side wants. Proponents of same sex marriage think it’s high time for their rights to be guaranteed by federal courts as a constitutional matter. Even though public opinion is shifting, and by now nine states have affirmed a right for same-sex couples to marry, proponents would prefer that a federal constitutional right be created by the U.S. Supreme Court. This obviates the need to continue to try to win the issue state-by-state over time, and it creates a guarantee that cannot easily be undermined or withdrawn by state legislatures and the political process.

Opponents of same sex marriage would prefer that the Court affirm that marriage is only between a man and a woman, upholding both the federal Defense of Marriage Act and California’s Proposition 8, and in effect declaring that same-sex marriages do not merit the same “equal protection of the laws” as heterosexual marriages.

But courts should not be engines of social change. It is up to the people, through ballot measures and their elected representatives, to decide social questions. When the Supreme Court took it upon itself to create a constitutional right to an abortion (Roe v. Wade, 1973), there followed decades of ill-tempered battles about judicial activism as well as over abortion itself. Is the Supreme Court ready to do this again with respect to same-sex marriage, especially when the states are actively taking this up? One would think that this is a bad idea, both politically and constitutionally.

Even more important, constitutionally marriage is not a federal question, but rather a state matter. In 1948, the U.S. Supreme Court affirmed that “under the Constitution, the regulation and control of marital and family relationships are reserved to the States.” (Sherrer v. Sherrer, 1948). Even in the judicial activism of the 1970’s, the Court again held that the regulation of “domestic relations” is within the “virtually exclusive province of the states.” (Sosna v. Iowa, 1975).

How might the Court, then, avoid both judicial activism and simultaneously affirm that states are the locus of decision about marriage? First the Court would hold that the federal Defense of Marriage Act (DOMA) is unconstitutional as a federal incursion on state power. Its one-size-fits-all attempt to regulate marriage—defining marriage for federal purposes as a legal union between one man and one woman—takes away state powers in violation of the Tenth Amendment (power not delegated to the federal government remains with the states or the people). But, in the other case before it, the Court would also rule that Californians have the right to make their own decision about marriage and that the federal courts below it were wrong to invalidate Proposition 8. Alternatively the Court could decide that there is no standing for private citizens to defend the California law, since the state of California declined to do so, and leave the one same-sex couple free to marry but not allow the case to serve as a precedent.

So many of the cases before the Supreme Court appear to concern the hot issues of the day: immigration, healthcare, same sex marriage. But, in the end, these cases are really about Constitutional power, and they should be decided on that basis. Our society is better off when social questions such as same sex marriage are decided through debate and discussion by the people and their elected representatives, not by a handful of judges.

This article is available online at:
http://www.forbes.com/sites/daviddavenport/2013/03/25/the-supreme-court-should-leave-how-we-marry-to-the-states/