The trial over the California constitutional amendment defining marriage as one man and one woman already took place where it should have—among the voters of California during the fall of 2008 when they debated its merits and decided to approve it. The U.S. Constitution permits the people or their elected representatives to decide public policy issues and to reaffirm the definition of marriage that existed even before the state and nation did. There is nothing bigoted or unconstitutional about doing so.
Those who oppose the new marriage amendment wrongly argue that its purpose was to target same-sex couples. But this defies common sense. That would mean that societies from around the world, from Singapore to Siberia, from Byzantium to Bangkok, all independently decided that establishing marriage was an effective way to discriminate against same-sex couples. That can’t be right. Because so many nations define marriage the same way, something else is going on other than “bias.”
The collective experiences of societies separated by oceans and centuries have come to the same general conclusion: when nations put men and women together, they inevitably produce children. In order for a society to sustain itself into the future, it must ensure that those children are raised in the best manner possible—by their own father and mother living in a committed lifelong relationship.
Even President Obama has recognized the damage done to children raised without fathers: “We know the statistics—that children who grow up without a father are five times more likely to live in poverty and commit crime, nine times more likely to drop out of schools, and 20 times more likely to end up in prison. They are more likely to have behavioral problems or run away from home or become teenage parents themselves. And the foundations of our community are weaker because of it.”
Same-sex “marriage” potentially compounds this problem by encouraging the creation of households that, by design, lack a father or lack a mother. Who is not necessary to raise a child, the father or the mother?
The fact that infertile couples can marry does not render marriage laws unconstitutional or irrational. Most married heterosexual couples will produce children. Many infertile couples endure that condition only temporarily. Even an older, married, infertile couple can do something that no same-sex couple can do: raise a child with both a father and a mother. A same-sex couple, whether young or old, will never produce a child without some heterosexual assistance and will always lack either a father or a mother.
Furthermore, society doesn’t define fundamental rights based on every possible exception. When it comes to voting, we have a minimum voting age because we presume that adults are wiser and better informed than children. However, some adults are foolish, ill-informed, or even mentally incompetent, while some children are better informed and capable of making rational choices. Those exceptions to the rule do not make the voting laws arbitrary or unconstitutional.
The historic understanding of marriage also cannot be reasonably compared to odious and unconstitutional laws against interracial marriage. Those laws only prohibited white people from entering interracial marriages but permitted, for example, an Asian and an African to marry. The obvious racial disparity in those laws clearly demonstrated their unconstitutional intent to promote white supremacy, so the courts rightly struck them down. And at no time did that battle affirm marriage between members of the same sex.
Neither is this a case of the majority denying constitutional rights to a minority. There is no right for an individual to force the government to redefine marriage to match his or her desires. What the opponents of California’s marriage amendment are proposing in federal court is more like what polygamists argued to the U.S. Supreme Court over a century ago—that they have a constitutional right to their form of marriage. The Supreme Court at that time repeatedly and rightly rejected their extreme view of the Constitution, and the federal courts should do so again here.
The debate on the definition of marriage will go on, but the Constitution permits California voters to wisely add Proposition 8 to the state Constitution just as they did.