The New Roe v. Wade
The Supreme Court decision determining by the narrowest of margins that the right to gay marriage is protected by the Constitution does not solve anything. In fact, it assures – much like Roe v. Wade 42 years ago – that nothing is resolved. The left’s addiction to undemocratic “interpretation” of the Constitution by the federal judiciary is a suppression of popular will. Consider today that support for abortion on demand is hovering at its lowest levels since Roe v. Wade.
Roe v. Wade created the pro-life movement, which shows no signs of weakening and which continues to pass laws at the state level throughout much of America. Before Roe v. Wade, no significant group of Americans was pushing for a national “Right to Life Amendment” even though some states allowed abortion and all states allowed abortion under some circumstances.
State legislatures determined when abortion was allowed, and state voters who were themselves governed by these laws (and who could migrate to another state, if they wished), through these local politicians, modulated the response to abortion in light of the moral values of the community.
This is how all moral issues were regulated until the advent of rogue federal benches. In the particular area just decided by the Supreme Court, for example, each state had determined who could marry and how marriages occurred. Some states allowed girls as young as 13 to marry, and others had much higher age thresholds. Some states “married” couples who lived together by common law, regardless of any marriage license or ceremony.
There was not and never has been a uniform standard throughout the states of the union regarding who could marry. There was also nothing to prevent state legislatures from allowing polygamous marriages or incestuous marriages. Americans who wished a particular lifestyle have had fifty different polities in which to choose, and by weight of numbers, they could influence or even determine the laws of the state.
Now there is a single standard imposed at the national level by unelected judges who have arrogated to themselves over the course of the republic the power to be a super-legislature. It is almost inevitable that something analogous to the pro-life movement will grow and flourish in state governments where the voters strongly disagree with federal judges telling them what they marriage laws must be.
What might happen? One simple course is that state legislatures may simply abolish the civil institution of marriage in their states. Individual couples could still enter into any private sacramental ceremony that satisfied their faith. Indeed, the legislative language of such new state laws might note, “The civil institution of marriage is prospectively repealed. The right of individuals to marry according to the tenets of their faith, without the effect of law, is explicitly allowed.”
Huge numbers of Americans have children out of wedlock or live together boastfully unmarried, and there is no sanction for that behavior. Most people who take marriage vows “until death do us part” divorce and remarry. Although many states still retain laws making adultery illegal, virtually no one is ever prosecuted under these laws. Why retain state marriage at all under these conditions?
This abolition of state marriage, of course, could only be prospective, and those already married would retain their legal status. The effect over time would be to completely remove government – but not, of course, religion – from marriage in much of America. Priests, ministers, and rabbis who married couples by private service only could set whatever criteria the tenets of their faith require.
This has always been true. An Orthodox Jewish woman who wished to remarry had to get a “get” from her previous husband. Catholic priests once required conversion of a non-Catholic spouse before marrying a couple, and Protestant denominations have always had requirements beyond what the civil law of marriage in a state. (These divisions within the Judeo-Christian tradition are trivial compared to what is required in other faiths like Islam and Hinduism, among others.)
The status of children of a couple would not change at all. Decades ago, issues of child custody, child support, visitation, and the whole panoply of parental rights were resolved so that aside from the issue of determining paternity (which DNA testing can now do perfectly), there were virtually no issues left to resolve.
As with Dred Scott, which ensured a bloody civil war, and like Roe v. Wade, which has produced a long social war, the Supreme Court has only succeeding in creating countless future battles and endless recriminations from Americans who would have been happy to leave each state, through its legislature, to define marriage as the citizens of that state wished.