Written with Bruce Hausknecht; Judicial Analyst for The Daily Citizen.
It’s been four years since the Supreme Court mandated that states grant marriage licenses to same-sex couples. After the court’s decision in Obergefell vs. Hodges, conservatives seemed to roll over and accept defeat. There’s been no concerted effort to push back against the Obergefell decision.
The Family Action Council of Tennessee has a plan to retake the power to define marriage out of the hands of nine unelected, unaccountable judges and return it to the states where it belongs.
In Obergefell, the court held that if a state licenses a marriage between a man and a woman, the Fourteenth Amendment requires a state to license a same-sex marriage.
Yet nothing in the decision required states to license marriages in the first place. The states still get to make that determination.
Therefore, the Family Action Council of Tennessee will be urging the state legislature’s passage of the Marital Contract at Common Law Recording Act (MCCLRA). This would get rid of the existing statutory marriage licensing structure within Tennessee, thereby nullifying Obergefell’s impact on the state.
In its place, under the MCCLRA the state would recognize common law marriages between a man and a woman.
The common law refers to the natural rights and laws that humans live by, rather than the laws that are positively enacted by the states. Prior to any formal recognition of a marriage by the state, men and women have a natural right to marry. The MCCLRA would allow for heterosexual couples to marry, and then provide notice of their marriage to the state.
Now, what is the purpose in returning the power over marriage to the state level, especially since the majority of Americans now support same-sex marriage? Despite the claims of some that those who believe in traditional marriage are ‘homophobic bigots,’ there are good reasons to recognize only traditional marriage.
First, children fare better when raised with both a mom and a dad. The Washington Times reported on two studies that found, “when compared with adults raised in married, mother-father families, adults raised by lesbian mothers had negative outcomes in 24 of 40 categories, while adults raised by gay fathers had negative outcomes in 19 categories.” A recent book which reviewed 330 studies on this topic reached the same conclusion. The research supports what we all intuitively know; children need a mom and a dad.
Second, Justice Kennedy wrote in his majority opinion in Obergefell that, “It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” But since that decision, we have seen anti-Christian leftists attempt to erase those who believe in traditional marriage from the public square. From Jack Phillips in Colorado, to Barronelle Stutzman in Washington, to the Kleins in Oregon, religious freedom is under attack.
Third, it is the right of every sovereign people to govern themselves. In his scathing dissent in Obergefell, Justice Scalia famously wrote, “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” If the people are to be sovereign, and if the Constitution is truly for “We the people,” then the ability to decide the question of what marriage is must be returned to the states.
Also writing in dissent, Chief Justice John Roberts wrote, “This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us…. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”
David Fowler, the executive director of the Family Action Council of Tennessee, drove this point home in an emailed statement: “If marriage is a now a federal issue, it’s the federal government’s responsibility to provide the license, not Tennessee’s, and the federal government, especially not the Supreme Court, cannot make a state enact a statutory scheme for licensing this new form of federal marriage.”
If the Tennessee legislature has the courage to pass the MCCLRA, the Chief Justice’s point will once again be true. It’s time for the people to reclaim the power that five unelected justices seized. As Alexander Hamilton wrote in Federalist No. 78, the court should remember that it has, “neither force nor will, but merely judgment.”
To advocate for the restoration of traditional marriage and support the work of the Family Action Council of Tennessee, visit http://www.godgivenmarriage.com/