Director, Commonwealth Policy Center

Earlier this week, the U.S. Supreme Court heard lively oral arguments over the constitutionality of state laws that keep marriage between a man and a woman. Opposing attorneys jockeyed for position on the social issue of the decade—an issue whose stakes are higher than the outcome of the Kentucky Derby this Saturday. Much more is riding on this case than meets the eye.

For starters, free-speech and freedom of religion—twin pillars of our First Amendment, have been curtailed if not trampled in some instances by states that have neutered the opposite gender requirement for marriage. The Court must ask itself if it is willing to unilaterally impose a highly controversial and newfound definition of marriage that has abridged dearly held freedoms recognized since the founding of our country.

Regarding religious freedom, Samuel Alito asked Solicitor General Donald Verrilli the impact legalized gay marriage would have on religious schools that teach marriage as the union of a man and a woman. Verrilli admitted that religious schools may lose their non-profit tax-exempt status. “It’s certainly going to be an issue. I don’t deny that. I don’t deny that,” Verrilli said. Justice Alito responded “It is—it is going to be an issue.”  Justice Scalia asked whether ministers would be able to refuse to officiate a homosexual wedding. Absent certainty of preserving religious freedom, a ruling overturning existing marriage laws is a false start.

What happens to the free speech rights of those who disagree with homosexual marriage? Do we go the way of Canada? Will there be more Kelvin Cochrans', Craig James’ and Brenden Eichs' in the news? Or will a pro-gay marriage ruling chill speech?

And what becomes of the democratic process itself? Chief Justice John Roberts warned that if the Court unilaterally redefines marriage they would end debate—one that has been robustly joined by most states in the last decade.“Closing of debate can close minds, and it will have a consequence on how this new institution is accepted,” Roberts said. “People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”

For the record, the marriage question has been on the ballot in 35 states in 39 different elections.  Altogether 51,483,777 voters or 61 percent favored retaining the man-woman definition of marriage. Same-sex marriage votes total 33,015,412 or 39 percent. Here in Kentucky, 1,222,125 voters approved marriage (75 percent) and 106 state legislators recently signed an amicus brief supporting our marriage law. Bottom line: when the issue is debated in the court of public opinion and when citizens have their say, they have ownership in the decision. That whole “government of the people, by the people and for the people” comes to mind.

Disregarding the voters will neither ease tensions or settle this question. More likely, striking down duly enacted state marriage laws will tear a cultural rift as deep at the infamous Roe v. Wade ruling 42 years ago.  Justice Stephen Breyer asked "This has been the law for thousands of years. Suddenly, you want nine people outside the ballot box to require states that don't want to change?” Justice Kennedy, who many see as the Court's swing vote, also pointed out that man-woman marriage has been "with us for a millennia. Why should the court impose a new definition and say ‘we know better?’"

What are the odds that a handful of unelected judges can maintain their credibility if they overturn millennia of world history, neglect anthropological, biological and sociological arguments, and short-circuit the democratic process? It’s a fools bet for the same judges to think they can maintain their institutional respect while sweeping away three-fifths of state constitutional amendments and 51 million votes.

Court watcher and marriage advocate Ryan Anderson observed during oral arguments that the “nine Supreme Court justices do not have any greater insight on ideal marriage policy than do ordinary American citizens.” Unanswered questions and pitfalls which are no longer hypotheticals, should lead the Court to exercise restraint. Should they do so, it will be a victory for the democratic process, the rights of American citizens, and their elected officials to recognize marriage policy in their own states.

This appeared in the May 18 edition of the Lexington Herald-Leader.