In the wake of the two Supreme Court decisions on same sex "marriage," many commentators will concentrate on the negative effects legalizing same sex marriage will have on our society. However, far from settling whether same sex marriage is universally legal in the United States, what the Court did was ignite a new and much more divisive culture war between conservatives and the secular liberal elite.
If, as the Court seems to say, the will of the people is irrelevant to the definition of marriage, then the Supreme Court’s decisions in the two same sex “marriage” cases in essence eliminated one of the fundamental reasons men and women have come together from time immemorial to form governments – to order a moral framework for society.
And this is where the culture war is going to get hot.
What the Court said was that in defining what is or is not a lawful "marriage" a handful of elite elected and appointed officials may render void the will of the people properly expressed through their Representatives in Congress and the initiative process in the State of California.
In both cases (DOMA and California Prop 8) the people spoke, but the elected officials charged with defending the will of the people “threw the game” by refusing to defend the Defense of Marriage Act and California Proposition 8 defining marriage as the union of one man and one woman.
In the California Prop 8 case the Supreme Court said nothing about the validity of the same sex marriage bans in California and roughly three dozen other states. What they said was that defenders of California's same sex marriage ban did not have the right to appeal lower court rulings striking down the ban.
This means that those officials who refused to carry out their lawfully duties to defend the ban the people passed – in the case of Prop 8 that would be the Governor, Attorney General and Secretary of State of California – could thwart the will of the people, and the people could not come to the Supreme Court or any other federal court to defend the law they passed.
If the top elected officials of a state can void the result of a referendum vote on a constitutional amendment simply by refusing to defend it in court – and the court won’t recognize the right of proponents to defend the will of the people – what’s the point in having the initiative and referendum process?
Such a ruling is certainly the height of mindless legalism and in place of the duly expressed will of the people of California it substitutes a strange rule of the elite for our federal system of representative government.
It also means that a willingness to stand firm and actively defend laws defining marriage as the union of one man and one woman is going to be an important test for any candidate seeking the support of cultural conservatives for the office of Governor or state Attorney General.
In the case of the Defense of Marriage Act the issues were more complicated, but still came down to the same principle: Who decides society’s moral framework, the people or a small elite?
As in the Prop 8 case the elected officials charged with defending DOMA as the duly enacted law of the land – President Obama and Attorney General Eric Holder – essentially threw the case by refusing to defend the law.
And the Court used what Justice Scalia termed a “power-grabbing decision” to find that it had jurisdiction to rule DOMA unconstitutional. What Scalia scorched in his dissent is what was in essence collusion between President Obama and the homosexual activist community to offer the Supreme Court a “fixed” case that created an opportunity to satisfy the “Court’s desire to blurt out its view of the law.”
Justice Scalia’s insight that “Be sure of this much: If a President wants to insulate his judgment of unconstitutionality from our review, he can. What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance.”
The Supreme Court has waded into a public policy debate every bit as contentious – and endless – as the abortion debate.
While we decry the Supreme Court’s erosion of government’s foundational role in creating a moral order for society, the most frightening part of today’s decisions is that the Court appears to have removed the power to order society’s moral framework from “We the People,” and vested it in an elite class of judges and public officials who may ignore our will at their pleasure.
If Congress can’t define marriage, and the voters of California can’t define marriage because their elected officials don’t agree with the voters’ decision, the only way to bring the debate over the definition of marriage to a conclusion satisfactory to conservatives is to step up the culture war to ensure that we elect only those who will stand for traditional marriage as Governors, state Attorneys General and President of the United States.