The Engage Family Blog

Official Blog of The Family Policy Council of West Virginia

Marriage and Democracy

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West Virginians really know what they are talking about when it comes to democracy and marriage.

Take for instance West Virginian-turned-Princeton-professor Robert P. George. Recently, his commentary, “Gay Marriage, Democracy, and the Courts,” appeared on the editorial page of the Wall Street Journal. This thoughtful piece examines the contentious battle between self-government and judicial activism. He begins,

We are in the midst of a showdown over the legal definition of marriage. Though some state courts have interfered, the battle is mainly being fought in referenda around the country, where “same-sex marriage” has uniformly been rejected, and in legislatures, where some states have adopted it. It’s a raucous battle, but democracy is working.

Indeed, the recent experience of several states has ended any serious question over whether there is a nationwide effort to redefine marriage. The question now – at least for West Virginia – is whether or not there is a legitimate reason to prevent a vote on the definition of marriage.

It’s a question that could end up before the Supreme Court of Appeals of West Virginia, or even before the Supreme Court of the United States. Removing such a question from the people and allowing unaccountable judges to make the decision, George argues, would be a severe mistake – one we should have learned as a country with another socially contentious issue: abortion.

George argues that Roe v. Wade removed, “a morally charged policy issue from the forums of democratic deliberation” and resolved it according the prevailing judicial wisdom. What’s worse, the culture war that has now spanned over three decades would burn brighter than ever.

By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Abortion, which the Court purported to settle in 1973, remains the most unsettled issue in American politics – and the most unsettling. Another Roe would deepen the culture war and prolong it indefinitely.

Perhaps, counter opponents of marriage, but with the decaying state of marriage today in America, why die on the hill of traditional marriage? After all, the Supreme Court once held that marriage is a fundamental right in Loving v. Virginia, shouldn’t every adult be allowed to marry whomever they loved, regardless of race, age, gender, or sexual orientation?

Such criticisms miss the mark, says George. Opponents of marriage already accuse us of being intolerant, to imply that we are racist too, “is ludicrous and offensive.” He elaborates,

The definition of marriage was not at stake in Loving. Everyone agreed that interracial marriages were marriages . . . Opponents of racist laws in Loving did not question the idea, deeply embodied in our law and its shaping philosophical tradition, of marriage as a union that takes its distinctive character from being founded, unlike other friendships, on bodily unity of the kind that sometimes generates new life . . . [O]nly this view can explain why the state should regulate marriage at all – to make it more likely that, wherever possible, children are reared in the context of the bond between parents whose sexual union gave them life.

Removing that organic connectivity by redefining it, argues George, entirely undermines marriage and makes it little more than, “an emotional union for the sake of adult satisfaction that is served by mutually agreeable sexual play.”

Thankfully our system of self-governance can prevent such a diluting of the marital union. Truthfully, marriage is under assault. Divorce and infidelity is rampant. The instability of cohabitation is being favored over commitment and fathers are abandoning the children they father in promiscuity.

Still, redefining marriage is not the solution. George concludes,

Because marriage has already been deeply wounded, some say that redefining it will do no additional harm. I disagree. We should strengthen, not redefine, marriage. But whatever one’s view, surely it is the people, not the courts, who should debate and decide. For reasons of both principle and prudence, the issue should be settle by democratic means, not by what Justice Byron White, in his dissent in Roe, called an “act of raw judicial power.”

Indeed. The Constitution of West Virginia belongs to its people. Every legislator should protect every West Virginian’s right to vote on which legal definition of marriage they will consent to be governed.

One man. One woman. That’s marriage.

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Written by Jeremy Dys

August 12, 2009 at 3:10 pm

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