After Obergefell: Facing the Main Question

My long-time brother in “columny,” the redoubtable George Marlin, has recently expressed his dubiety about the strategy of seeking a constitutional amendment to restore the understanding of marriage as the union of a man and woman. He would put the accent on measures in the separate states to shore up religious freedom. I too hope that something can be done to protect religious freedom, but for reasons I’ll take up at another time, that is turning out to be a tougher project in the states because the protections of the Religious Freedom Restoration Act (RFRA) are not available there. The invoking of “sincere beliefs” is not enough to shift the burden of justification to the law, as in the case of requiring pharmacists to deliver abortifacients upon request. (Vide the decision, just two weeks ago, in Stormans v. Wiesman in the 10th federal circuit.)

This “defensive” strategy of resistance has run into problems recently also on Capitol Hill, and it may be a mistake to regard it as the most practicable course available right now. At the same time, we may be diverting ourselves from the things that may be done more directly to challenge the decision of the Court on marriage in Obergefell. Of course, nothing would secure the institution of marriage as much as a constitutional amendment, which would put that institution beyond the wizardry of judges.

But I would share George Marlin’s reservations about putting the main effort right now on a constitutional amendment – and I’d state the matter even more sharply. The presidential candidate who will mention nothing more than a constitutional amendment on marriage is telling us that he is not serious; that there is nothing he is prepared to do right now. He knows that it would take a couple of years to bring about that amendment, and in the meantime, we’ll all just be getting used to same-sex marriage and the distortions that it is already producing in our law.

George Marlin rightly draws on the experience of the pro-life movement, but he seems to have forgotten that there was a serious attempt to counter the Supreme Court with ordinary legislation, well short of a constitutional amendment. And that was the Human Life Bill, an attempt to have Congress invoke its authority under the Fourteenth Amendment to protect the lives of those human persons still in their mothers’ wombs.

Professor, and later federal judge, John Noonan wrote a compelling essay in support of that bill. In making the case, he noted a string of notable instances in which the Congress challenged a decision of the Court on constitutionality – and the Court gave way.

Next up?
Next up?

To take just one example, the Court had pronounced it quite legitimate for a State to have a requirement of literacy for those who would vote. But then Senator Robert Kennedy attached a rider to a bill, effectively barring those kinds of restrictions on voting for Puerto Ricans in New York. Justice William Brennan, reviewing the case, noted that the Congressional Act was at odds with the holdings of the Court, and yet, he held, the Congress need not give way. It was the Court that would give way.

But the most dramatic example, of course, came with the famous decision on Dred Scott (1857). Lincoln and his Congress moved, through an act of ordinary legislation, to bar slavery from the Territories of the United States – an Act that struck at the decisive holding in Dred Scott. In this way, the Court could be challenged to take a sober second look at what it had done, and a constitutional amendment could come later.

The initiative for the Human Life Act failed through a series of missteps. But right now there are several things that could be done in ordinary legislation to put limits on the holding in Obergefell and bring out the bizarre implications in that decision. For one thing, the Congress could insist that “marriage,” as redefined by the Court, would not include polygamy or polyamory. It could be stipulated that federal law would recognize no marriage beyond two people. Nor would a State be obliged to respect a “marriage” containing more than two people, coming in from another State.

For the Democrats right now, it would be a strain to sign on to that kind of bill, for many people on the Left are already being drawn to an acceptance of polygamy. Why should they be spared then the need to explain why they would bar people from “marrying the ones they love?”

Beyond the precise content of the bill, there is the critical point to be made that the political branches may indeed act to modify and counter the decisions of the Supreme Court. And that offers the occasion to test the seriousness of anyone who would offer himself for the presidency of the United States. Who among the Republican candidates would be moved to follow Rick Santorum in saying of the decision in Obergefell that “this will not stand”?

But on one thing we can be utterly clear: none of the other measures to deal with the fallout on marriage – the threat to religious freedom, the move to a constitutional amendment – none of this will be done while we’re unwilling to strike at the heart of the matter itself. And if that challenge is not proclaimed now, it will never be done later.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.