For too long the U.S. Supreme Court has gotten away with claiming that it has some special power to interpret the Constitution. In Marbury v. Madison the only authority Chief Justice John Marshall could find to allow the Court to rule an act of Congress unconstitutional was the oath the justices take to defend he Constitution.
Members of Congress take the same oath and thus collectively have
the same authority to interpret the Constitution. All
Congress needs to do to express an opinion on the Constitution
is for each house to vote to adopt a joint resolution on the
Republicans should seriously consider passing a resolution
stating that the judicial branch has no authority to tell the states
how they can define marriage. The issue involves a social
policy that the courts have no authority to impose their own
opinions on. The resolution would indicate that states do not
have to obey "unconstitutional" court orders on this subject.
Adopting such a resolution now might cause the Court to recognize it
has on authority on the issue.
Presidential approval is only needed on measures that prohibit or
require some action. A resolution expressing Congressional
opinion about the Constitution doesn't require presidential
14th Amendment: "Section 5. The Congress shall have
power to enforce, by appropriate legislation, the provisions of this
article." This section means that Congress has superior
authority to determine what the amendment requires.
Members of Congress get their authority directly from the
people. Federal judges do not.
If we are to call ourselves a democracy, the people must be able to
control social policy and define social institutions.
They cannot do so if autocratic judges are allowed to impose their
personal opinions such as the Supreme Court did in Plessy v.
Ferguson when the justices told states that they could pretend
to obey the 14th Amendment by calling separate public facilities
"equal". The people through Congress and state
legislatures had said that states had to guarantee "equal protection
of the laws" not "separate but equal protection of the
laws". The Court waited 60 years before it corrected its
The issue isn't whether or not homosexuals can marry, but what the
definition of marriage is. States allow homosexuals to
marry members of the opposite sex. For example, homosexual
actor Rock Hudson was married to Phyllis Gates.
Marriage is a biological activity related to human reproduction in
which a male and female form a relatively permanent union for the
purpose of producing children. Marriage predated
governments. Governments have traditionally regulated
marriage largely to help protect the process of adding new members
to the society. For example, some regulations
attempt to insure that fathers provide for their
children. It is common for governments to prohibit
marriage between close genetic relatives to reduce the possibility
of children born with genetic defects.
Some states have decided to humor homosexuals who want to pretend
they are normal heterosexuals by allowing them to pretend that a
relationship with another person of the same sex is like a
marriage. Failure to go along with this fantasy is not
discrimination against homosexuals. States have no
obligation to support such therapy by going along with fantasies.
Providing special benefits for belonging to a couple, such as
greater pay or fringe benefits, discriminates against single
people. Special benefits to heterosexual couples can be
justified because such couples can produce new members for society.
Two males or two females cannot do so.
States could allow limited privileges to those couples [any
two adults including close genetic relatives] forming civil
unions, such as joint ownership of financial assets, without being
discriminatory because such an arrangement would be the
equivalent of a business partnership and would not give the members
of the couple anything of value.
If we are to continue to call ourselves a democracy we must be able
to determine the nature of social institutions through a direct vote
or through the actions of our elected representatives.
Allowing judges who never have to face the voters to define social
institutions is inconsistent with democratic government. Only
Congress whose members are chosen by the people has the authority to
impose a uniform definition of marriage on the states. Perhaps
the time has come for Congress to do just that.