By the time I reached my fourth and final year as a graduate student in law and public affairs at the University of Texas (UTx), I predicted the final outcome of the long legal conflict over homosexual marriage. The response of the academic legal establishment to the decision in Bowers v. Hardwick (1986) made clear that in time, the Democratic Party would support equation of homosexual unions with marriage, and thus that a five-vote Supreme Court majority for homosexual marriage would coalesce.
What played no role in my prognostication were any of the materials supposed to determine the outcomes of constitutional cases: materials casting light on the understanding of the relevant constitutional provisions. Those materials of course have essentially nothing to do with deciding these controversies in America. My favorite UTx law professor, Lino Graglia, rightly analogized the role played by federal judges in the American political system to that of the mullahs in Iran: we have elections, with great fanfare, and then the real authorities decide what government policies we will have. Graglia went one further, noting that since the Revolution of 1937, the American polity has been pushed steadily in the direction advocated by the American Civil Liberties Union (ACLU).
The ACLU has pushed for drastic restriction, and preferably abolition, of capital punishment; for stringent reduction of criminal sentences; for establishment of extensive new procedural protections for criminal defendants; for busing of children to achieve racial balance in schools; for an extensive system of “affirmative action” race and sex preferences for non-whites and non-males; for freedom of expression of various kinds for children in public schools; and for various other such policies.
In general, where there has been a conflict between Christianity and any other influence on American culture, the ACLU has opposed Christianity. Thus, for example, the ACLU stood in the preceding decades for elimination of various restrictions on contraception and finally for the Supreme Court’s 1973 decision in Roe v. Wade making abortion more liberally available in America than anywhere else. It stood for a ban on any kind of official prayer in public schools, and then for a ban on moments of silence lest children get the idea that authority figures wanted them to pray.
Little attempt was made to hide that this behavior was legislative, not judicial. One jurist, Abe Fortas, told one of his judicial clerks after telling him how he would vote on a case to “decorate” his opinion with legal arguments. Another, William Brennan, explained to his clerks that he operated according to the “Rule of Five”: “With five votes, I can do anything.” One prominent liberal legal scholar described the Court’s performance in Roe v. Wade as lamentable “because it is not constitutional law and gives almost no sense of an obligation to try to be.”
The federal courts and their defenders have argued that what the courts are doing is simply instantiating policies the people have come to prefer in constitutional law. Of course, the Constitution in Articles V (the amendment article) and VII (the ratification article) provided ways of making policies constitutional; in case the people were so strongly supportive of the court’s policies as it is said, one might hope and expect that those policies’ supporters would seek amendment through Article V. That they do not do so represents both an implicit concession that they do not believe their own rhetoric and an abuse of the constitutional system; where they are officials, it represents a violation of their oath to uphold the Constitution.
In the case of United States v. Windsor (2013), the Supreme Court struck down Section 3 of the Defense of Marriage Act, which defined “marriage” for federal purposes as a union between a man and a woman. According to the Court, this violated the Fifth Amendment’s equal protection component. Two points come immediately to the fore:
- Saying that all may enter into marriages, which involve one male and one female, does not actually deprive anyone of equal treatment; and
- The Fifth Amendment’s supposed equal protection component, first announced in Bolling v. Sharpe, is itself a complete fabrication—justified at the time by the Supreme Court through an offhand assertion that it wouldn’t make sense for the states to face the Equal Protection Clause of the 14th Amendment while the Federal Government faced no such mandate. This assertion was of course absurd, as the 14th Amendment’s Equal Protection Clause by its terms applies only to the states, and there were powerful reasons for adding such a mandate against the states to the Constitution.
Between President Clinton’s signing of the Defense of Marriage Act, which also included provisions permitting states to refuse to recognize other states’ homosexual-marriage policies, and the Windsor decision, some states—such as mine, Connecticut—adopted pro-homosexual-marriage policies, while numerous states adopted statutory and/or constitutional enactments expressly defining marriage as heterosexual. This was a manifestation of the authentic constitutional system of the United States, of vibrant republican politics under an authentically federal charter.
In light of the absence of any reason to think that any provision of the Constitution was intended to extend recognition to homosexual marriage and the presence of the Tenth Amendment, which made express what was said by ratification-contest Federalists to be the implicit principle that only the expressly granted powers were being granted the Federal Government, there is no valid constitutional argument that states must recognize homosexual marriage. Again, however, I knew a quarter-century ago that it would in the end be imposed upon the country. My prognostications have been fulfilled. This is the way the American system works—rather, does not work.
It seems that there is essentially no way that a potential constitutional policy could come to be favored by leading lights of the academic legal community, the bench, and the bar without ultimately becoming part of constitutional law. As Graglia pointed out, the tendency is for these démarches to lead the country away from its traditional Christian culture, and for the ACLU always to have its way. Thus, despite their will and the absence of any authentic constitutional authority, Americans’ society is being remade around them. Rather than the federal, democratic republic of a predominantly Christian people, the United States of America continues to be refashioned into something else.
Kevin R. C. Gutzman is the New York Times best-selling author of four books. These include his latest title, James Madison and the Making of America. Professor of History at Western Connecticut State University, Gutzman holds a bachelor’s degree, a master of public affairs degree, and a law degree from the University of Texas at Austin, as well as an MA and a PhD in American history from the University of Virginia.