By Nick Ingram and Katie McCann
Special to The Denisonian 

Today and tomorrow, the Supreme Court will hear oral arguments that could determine the fate of marriage in the United States. Hollingsworth v. Perry, which challenges the constitutionality of Proposition 8, the voter-approved referendum which revoked the right for California’s same-sex couples to marry, will be heard today. Tomorrow, the Court hears U.S. v. Windsor, which interrogates the constitutionality of the 1996 Defense of Marriage Act (DOMA), a law that limits the federal government’s recognition of marriage to heterosexual couples for the purpose of issuing federal marriage benefits.

The United States’ founding document is silent on the issue of marriage, and therefore, according to the Tenth Amendment, is an issue that should be left to the states—the people—to decide. But the Court has named marriage a “fundamental right,” a right that is “of the very essence of a scheme of ordered liberty” (as cited in Palko v. Connecticut). The Supreme Court will consider the tension between both of these ideas this week.

Proposition 8 has been overturned twice—once at the federal district court level and later by the 9th Circuit Court of Appeals. The 9th Circuit made its decision on the narrow grounds that California had granted a right and then taken it away.  We hope that the Supreme Court concurs with this ruling so as to limit its role in the culture war.

In contrast, for the Court to rule that all laws prohibiting same-sex marriage are unconstitutional requires that the Court answer such unsettled questions as whether homosexuals are a suspect class—whether they demand special protections because they share immutable characteristics of traditionally disadvantaged groups like women and racial minorities—questions we believe the Court, as well as society and science, is not ready to answer.

Some may say that Perry is comparable to Loving v. Virginia (1967) and Lawrence v. Texas (2003), but we believe otherwise. Loving indeed dealt with the immutable characteristic of race. But neither it, nor Lawrence, is analogous to Perry because both dealt with criminal statutes. In Loving, the Court ruled that the criminalization of interracial marriage violated the Constitution’s equal protection clause, whereas in Lawrence, the Court found that the criminalization of sexual conduct between persons of the same sex violated the Due Process Clause. Proposition 8 criminalizes nothing.

But where does this leave DOMA? Decisions on marriage law may be reserved for the states, but DOMA is a federal law and therefore does not fall under Fourteenth Amendment’s equal protection jurisdiction. In essence, DOMA permits states not to recognize legal same-sex marriages of other states. This differs substantially from those national laws that prohibit states from making specific laws. Yet U.S. v. Windsor deals with the second issue of the law: Section 3, which defines marriage as the “legal union between one man and one woman as husband and wife.” The law also defines “spouse” as “a person of the opposite sex who is a husband or a wife.” We are of the belief that Congress has overstepped its bounds in defining what marriage means. However, in Windsor, the Court is considering denied federal benefits to an otherwise legally married couple. The federal government is not denying rights. Although we would prefer that Congress not narrowly define marriage, we recognize Congress’s need to do so for federal purposes.

Yet even if Congress needed to restrict the definition of marriage, why? What is the state’s interest in defining marriage as purely heterosexual? We stand by the notion that the federal government should not define marriage under any circumstances. Nevertheless, the law’s constitutionality—whether Congress can define marriage—remains up in the air. In some ways we are hesitant to see the Court take sides in this culture war. But in others, we are ready for it to join in the conversation.