Marriage policy should be worked out in states

News about court cases that involve same-sex marriages usually travels fast. But when a judge in Tennessee recently upheld that state's constitutional authority to define marriage as the union of a man and a woman, it went almost unnoticed.

The case involved a same-sex couple married in Iowa that sought a divorce in Tennessee. Because Tennessee does not recognize same-sex relationships as marriages, it was unable to divorce the couple.

Judge Russell E. Simmons, Jr., cited the Supreme Court's decision in the federal Defense of Marriage Act case, U.S. v. Windsor as support that Tennessee has the right to define marriage for itself. "The Windsor case is concerned with the definition of marriage, only as it applies to federal laws, and does not give an opinion concerning whether one State must accept as valid a same-sex marriage allowed in another State," he wrote.

When the Supreme Court struck down the federal law defining marriage last year, Justice Anthony Kennedy explained that states have "the historical and essential authority to define the marital relation." Simmons takes Kennedy at his word, recognizing the basic equality of state citizens. Just as the citizens of Iowa are free to adopt same-sex marriage (though it was a state court that redefined marriage there), so too the citizens of Tennessee are free to retain the traditional definition.

"In the Windsor case the Supreme Court opines that if a state finds same-sex marriage to be valid, the federal government cannot trump that state's law," Simmons writes. "The Supreme Court does not go the final step and find that a state that defines marriage as the union of one man and one woman is unconstitutional. Further, the Supreme Court does not find that one state's refusal to accept as valid another State's valid same-sex marriage to be in violation of the U.S. Constitution."

What about arguments that claim there is a fundamental right to same-sex marriage? Simmons explains that while "marriage is a fundamental right," there is no right to redefine marriage. He continued: "Neither the Tennessee Supreme Court nor the United States Supreme Court has ever decided that this fundamental right under a state's laws extends beyond the traditional definition of marriage as a union between one man and one woman."

What's really at stake in this debate? According to Simmons: "The battle is not between whether or not marriage is a fundamental right, but what unions are included in the definition of marriage."

Yes, the fundamental policy question in this debate is "What Is Marriage?"

The fundamental legal question is who gets to define marriage. Simmons ruled it "should be the prerogative of each state." The judge continued: "neither the federal government nor another state should be allowed to dictate to Tennessee what has traditionally been a state's responsibility, which is to provide a framework of laws to govern the safety and wellbeing of its citizens."

Our federal Constitution is silent on what marriage is. Judges should not insert their own policy preferences about marriage and declare them to be required by the Constitution. The courts should uphold the freedom of the American people and their elected representatives to make marriage policy.

Marriage policy should be worked out by the people in the states. This is the beauty of federalism. We do not need a court-imposed 50-state solution. The courts should not force states to abandon caution in the face of a social experiment like the redefinition of marriage.

Ryan T. Anderson is the William E. Simon Fellow in the DeVos Center for Religion and Civil Society at The Heritage Foundation, a conservative think tank based in Washington, D.C.

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