Early in the debate over same-sex unions, defenders of marriage ceded too much ground when they placed modifying adjectives before “marriage.” For millennia, the word — and the institution — stood alone, signifying the union of a man and a woman. No more. Conservatives can blame themselves.
Legal redefinition of marriage was almost inevitable. Judges have been overturning the will of the people and thousands of years of religious, social and cultural precedent. Last week, in a 2-1 ruling, the 4th U.S. Circuit Court of Appeals declared the state’s marriage amendment unconstitutional.
Dissenting Judge Paul Niemeyer’s opinion is worth noting. Mr. Niemeyer said his two colleagues’ majority opinion “failed to conduct the necessary constitutional analysis.” They reasoned backward — i.e., declaring marriage a genderless institution and then searching for constitutional validation for this redefinition.
There is none. The Constitution does not define marriage because it was assumed — not just when it was written, but as late as a decade or two ago — that marriage was the union of one man and one woman. Never did that two-judge majority compellingly claim that a right to same-sex marriage is so fundamental as to be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Thus, no analogy can be drawn to Loving v. Virginia, which overturned the state ban on interracial marriage. The couple in question were a man and a woman.
As such, Judge Niemeyer referred to his colleagues’ tortured effort as “linguistic manipulation.” We simply call it constitutional adventurism.