The United States Supreme Court heard arguments dealing with the issue of the constitutionality of the Defense of Marriage Act (DOMA) and California's Proposition 8, which was a defense of traditional marriage (between one man and one woman) that was approved by the voters, but later was declared unconstitutional. In United States v. Windsor, the Court struck down the federal DOMA law as unconstitutional, but also ruled that states that prohibit same-sex marriage do not have to recognize those marriages that have been legalized in other states. In Hollingsworth v. Perry the Court ruled that the decision to overturn Proposition 8 in California would stand because the Supreme Court did not have jurisdiction.
The issue at hand is whether or not same-sex marriage is a protected right under the Constitution. Several states have passed constitutional amendments defining and protecting traditional marriage. Some states, including Iowa, and most recently Minnesota, are allowing same-sex couples to marry. The debate over marriage has furthered the cultural divide in the nation and the Supreme Court's decision will have a major impact not only on the future of marriage, but also on the future course of our nation. Matthew Spalding, Vice President of American Studies at The Heritage Foundation, wrote that the "debate over the legal status of marriage has emerged as a critical national issue, the resolution of which will shape the future of our society and the course of constitutional government in the United States."
The debate over the definition of marriage is taking the nation by storm as advocates of same-sex marriage argue that they are being denied the right to freely enter into the covenant of marriage. Defenders of same-sex marriage argue that the Constitution's Due Process and Equal Protection clauses protect them against traditional marriage laws such as DOMA. John C. Eastman, a Constitutional scholar and lawyer, wrote that "the Equal Protection Clause does not compel recognition of same-sex marriages because same-sex couples are not situated similarly, in relevant respects, to opposite sex couples."
The Windsor decision will bring further constitutional questions over equality because it is most certain that states that prohibit same-sex marriage will be challenged for discriminating. Patrick J. Buchanan wrote that "a common faith and moral code once held this country together," but the debate over marriage, just as with the economic policy debate, demonstrates the great national divide.
The solution to the marriage issue is to adopt a federal marriage constitutional amendment which protects traditional marriage. As the late Judge Robert H. Bork noted, the issue of same-sex marriage "is going to be decided at the national level; either there will be a constitutional right to such marriages, created out of whole cloth by judges, or there will be an amendment to block that development."
John Hendrickson is a research analyst at the Public Interest Institute in Mount Pleasant.