Guest column: Cheating both sides

The people, and not one unelected judge, should be providing the legal definition of marriage, writes Steve Parry.

By Steve Parry

Times are changing, as evidenced by the Supreme Court’s 5-4 decision in Windsor last year holding the federal definition of marriage (one man, one woman) unconstitutional and the recent federal magistrate’s decision in Latta declaring Idaho’s marriage laws unconstitutional.

As barriers to same-sex marriage fall like dominoes, a must read for those interested is John Witte’s book “From Sacrament to Contract.” While providing an arsenal of arguments for both sides, Witte chronicles the history of marriage from a deeply religious institution to a social contract. As religion ceded control of marriage to government, the gradual secularization of marriage was hastened during the Enlightenment Period, leading philosopher Frederick Nietzsche to predict over a century ago that “The family will be slowly ground into a random collection of individuals haphazardly bound together in the common pursuit of selfish ends.”

The Latta ruling relies on the unanimous 1967 Supreme Court decision in Loving v. Virginia, which found laws banning interracial marriage unconstitutional. Latta quotes Loving as finding the freedom to marry “to be a long-recognized personal right,” but then omits the next statement in Loving that “Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.” As observed by Justice Alito in his dissenting Windsor opinion, “A marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.”

Society transitions best with widespread agreement, and considering that our democratic process was moving toward recognizing same-sex unions it is especially unhealthy for a divided 5-4 Supreme Court to prematurely trump the 85 elected senators (Windsor) or the 280,000 plus Idahoans (potentially Latta) who voted for a traditional marriage definition. Although the end result appears almost inevitable as the legal defenders of traditional marriage march into the “valley of death,” judicial recharacterizations of history to construct a “fundamental right” to same-sex marriage injures the democratic process. Judge Scalia correctly observed in his dissenting Windsor opinion that removing the decision from the democratic process “has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat.”

Protecting the basic rights of minorities is a hallmark of our unique judicial system, but unless the right is truly “fundamental,” as found by a unanimous Supreme Court such as in Loving, major changes to the institution of marriage should be left to the people.

As it looks now, the future definition of marriage will likely be decided by one vote in the person of Justice Kennedy. In the absence of a historically established “fundamental right,” the judiciary should not be so quick to preempt democracy. Your vote counts, but the vote of one unelected judge matters.