The Supreme Court Enlists in the Sexual Revolution

We have traveled very far from 1888 when a majority of the U.S. Supreme Court was willing to endorse the notion that marriage “is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.” Over the last two years, roughly forty federal courts have issued opinions on the question of whether states may continue to reflect in their laws the hitherto unanimous understanding of marriage as the union of a husband and wife. When they opine on the meaning of marriage, the conceptions they endorse are drastically at odds with the earlier description. Thus, a federal court sitting in Alaska described marriage as “a deeply personal choice about a private family matter.” A majority decision from the U.S. Court of Appeals for the Fourth Circuit said marriage “allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security.” A panel of the Seventh Circuit recently said: “Marriage confers respectability on a sexual relationship.” These court decisions all came in the wake of, and necessarily relied on, a summer 2013 Supreme Court decision, United States v. Windsor, in which a five-judge majority of the Court had ruled that the U.S. Constitution precluded Congress from specifying that “marriage” and related terms refer to a male-female union. That opinion had begun by suggesting that the law was invalid because Congress had not deferred to state marriage definitions but went on to make a much more significant claim, a claim that fueled the resulting challenges to every state’s marriage laws. In this decision, Justice Anthony Kennedy finds that by including in federal law a definition of marriage at odds with state recognition of same-sex “marriages,” Congress had singled "o
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