Written by Walter E. Williams

Democratic socialist Alexandria Ocasio-Cortez, seeking to represent New York’s 14th Congressional District, has called for the abolition of the Electoral College. Her argument came on the heels of the Senate’s confirming Brett Kavanaugh to the U.S. Supreme Court. She was lamenting the fact that Chief Justice John Roberts and Justice Samuel Alito, nominated by George W. Bush, and Justices Neil Gorsuch and Kavanaugh, nominated by Donald Trump, were court appointments made by presidents who lost the popular vote but won the Electoral College vote.

Hillary Clinton has long been a critic of the Electoral College. Just recently, she wrote in The Atlantic, “You won’t be surprised to hear that I passionately believe it’s time to abolish the Electoral College.”

Subjecting presidential elections to the popular vote sounds eminently fair to Americans who have been miseducated by public schools and universities. Worse yet, the call to eliminate the Electoral College reflects an underlying contempt for our Constitution and its protections for personal liberty. Regarding miseducation, the founder of the Russian Communist Party, Vladimir Lenin, said, “Give me four years to teach the children and the seed I have sown will never be uprooted.” His immediate successor, Josef Stalin, added, “Education is a weapon whose effect depends on who holds it in his hands and at whom it is aimed.”

A large part of Americans’ miseducation is the often heard claim that we are a democracy. The word “democracy” appears nowhere in the two most fundamental documents of our nation — the Declaration of Independence and the U.S. Constitution. In fact, our Constitution — in Article 4, Section 4 — guarantees “to every State in this Union a Republican Form of Government.” The Founding Fathers had utter contempt for democracy. James Madison, in Federalist Paper No. 10, said that in a pure democracy, “there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.”

At the 1787 Constitutional Convention, Virginia Gov. Edmund Randolph said that “in tracing these evils to their origin, every man had found it in the turbulence and follies of democracy.” John Adams wrote: “Remember Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide.” At the Constitutional Convention, Alexander Hamilton said: “We are now forming a republican government. Real liberty” is found not in “the extremes of democracy but in moderate governments. … If we incline too much to democracy, we shall soon shoot into a monarchy.”

For those too dense to understand these arguments, ask yourselves: Does the Pledge of Allegiance say “to the democracy for which it stands” or “to the republic for which it stands”? Did Julia Ward Howe make a mistake in titling her Civil War song “Battle Hymn of the Republic”? Should she have titled it “Battle Hymn of the Democracy”?

The Founders saw our nation as being composed of sovereign states that voluntarily sought to join a union under the condition that each state admitted would be coequal with every other state. The Electoral College method of choosing the president and vice president guarantees that each state, whether large or small in area or population, has some voice in selecting the nation’s leaders. Were we to choose the president and vice president under a popular vote, the outcome of presidential races would always be decided by a few highly populated states. They would be states such as California, Texas, Florida, New York, Illinois and Pennsylvania, which contain 134.3 million people, or 41 percent of our population. Presidential candidates could safely ignore the interests of the citizens of Wyoming, Alaska, Vermont, North Dakota, South Dakota, Montana and Delaware. Why? They have only 5.58 million Americans, or 1.7 percent of the U.S. population. We would no longer be a government “of the people”; instead, our government would be put in power by and accountable to the leaders and citizens of a few highly populated states.

Political satirist H.L. Mencken said, “The kind of man who wants the government to adopt and enforce his ideas is always the kind of man whose ideas are idiotic.”

Walter E. Williams is a professor of economics at George Mason University.

This article was originally published at  the Creators Syndicate webpage.

It has been an eventful term for the U.S. Supreme Court, which has provided many closely decided cases and ended with the retirement of Justice Anthony Kennedy. For those interested in free speech and religious liberty, there have been plenty of decisions to keep track of and digest. Here is what you need to know.

Masterpiece Cakeshop v. Colorado Civil Rights Commission

The story is well-known. Jack Phillips, a Christian cake shop owner from Colorado, refused to create a cake for the same-sex “wedding” of two men. They filed a complaint with the Colorado Civil Rights Commission, which held that Mr. Phillips violated the state’s public accommodation laws. Much of the litigation centered around whether creating a wedding cake fell under the free expression protections of the First Amendment, but the Court punted on this argument, leaving it for a future case. Instead, the Court ruled for Mr. Phillips on two separate grounds.

First, the Commission did not employ religiously neutral standards when deciding Mr. Phillips case, and instead showed unwarranted hostility towards his Christian faith. One official on the Commission even referred to Mr. Phillips’ faith as “one of the most despicable pieces of rhetoric that people can use.”

Second, the Court found that the Commission had used different standards for different bakery owners. An individual named Bill Jack (no relation to Jack Phillips) went to several bakeries asking them to create a cake with a message critical of homosexuality derived from the Bible and was—unsurprisingly—refused service. When complaints were filed, the Commission found that bakeries can refuse to make a cake with a message they deem to be derogatory.

The popular narrative is that this case was decided on narrow grounds and sets little precedent for future cases. However, Masterpiece has already proven to be more influential than that narrative suggests. Anti-religious animus by government officials is common in religious liberty cases, and there’s no better example than Arlene’s Flowers.

Arlene’s Flowers Inc. v. Washington

Similar to Jack Phillips, Barronelle Stutzman, a Washington florist, refused to offer her services for a same-sex wedding. However, in this case, when she refused to create a floral arrangement for a same-sex couple, it was not the couple who took action. Rather, the state’s attorney general, on his own initiative, filed a complaint against Ms. Stutzman, showing unusual hostility towards her religious beliefs. This led to the Washington Supreme Court holding that Ms. Stutzman engaged in unlawful discrimination. However, the U.S. Supreme Court vacated the decision and remanded it back to the state supreme court to consider the decision in light of Masterpiece.

National Institute of Family and Life Advocates v. Becerra

This case had less headline appeal than Masterpiece but will likely end up being the more influential in First Amendment jurisprudence. The Court found that California’s Reproductive FACT Act, which forced pro-life pregnancy centers to post disclosures about the state’s abortion services, to be a violation of the pregnancy centers’ free speech rights. The decision was important on several fronts. Most notably, the Court refused to create a lesser standard of First Amendment protection for “professional speech.” The argument was that the state should be given greater power to prevent and compel the speech of professionals (like doctors, lawyers, and mental health counselors) than the usual First Amendment protections would allow. But Justice Clarence Thomas, writing for the majority, criticized such “professional speech” doctrine as being a tool to suppress unpopular ideas or information. The decision may open possible litigation on the issue of so-called reparative therapy bans, which ban professional counselors from talking with minors about their unwanted same-sex sexual attraction.

In his concurrence, Justice Kennedy came down particularly hard on California for its intolerance of the pro-life viewpoint:

The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.

Trump v. Hawaii

This case stems from then-presidential candidate Donald Trump’s promise of a “Muslim ban” during the 2016 presidential campaign. Initially, President Trump signed an order that banned entry in the U.S. from seven predominantly Muslim countries regardless of visa status. However, after getting blocked by the lower courts because of its disproportionate effect on Muslims and because of several anti-Muslim statements from the Trump administration, the president issued a moderated version of the order. This time, the order did not outright ban travel from the seven countries but it did add extra scrutiny before people were allowed to enter the U.S. The final order was also backed by evidence that the nations with restricted access posed legitimate national security risks and were not just chosen based on anti-Muslim animus.

Chief Justice John Roberts pointed out that although five of the seven countries with restricted access were predominantly Muslim, the countries made up only 8% of the world’s Muslim population and were previously designated as posing national security risks. The decision continues the longstanding judicial deference to the Executive Branch on decisions affecting national security. The High Court also renounced the infamous Korematsu v. United States decision, which allowed the executive branch to establish internment camps for Japanese Americans during World War II.

Janus v. AFSCME

This case is not just of interest for its First Amendment jurisprudence but also its close connection to Illinois politics. Illinois was one of the 22 states that allowed unions to charge nonmembers fees for the costs of collective bargaining with employers. Mark Janus, a government social worker from Springfield, filed suit against Illinois arguing that the government requiring him to pay a private organization like a union violated his First Amendment right to free speech and association. By subsidizing the union’s administrative costs, Janus argued that he was being forced by the government to support the union’s political activism. The U.S. Supreme Court agreed in a 5-4 decision. Justice Samuel Alito wrote that the law “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern” like tax increases or collective bargaining rights. One important distinction is that this ruling only applies to public sector unions, not to any in the private sector.

Rowan County v. Lund

One notable case that did not get the U.S. Supreme Court review comes from Rowan County, North Carolina, where the Fourth Circuit Court of Appeal barred the opening prayer at county board meetings. The prayer was led by the elected commissioners, who took turns leading at each meeting. Three residents were offended by the prayers and sued the county. The Fourth Circuit Court of Appeals struck down the prayer policy as violating the Establishment Clause despite clear precedent from the U.S. Supreme Court allowing public prayers in Town of Greece v. Galloway. Unfortunately, the High Court denied cert (i.e., declined to review the lower court decision) on the county’s appeal, and the Fourth Circuit’s decision stands.

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Written by Daniel Horowitz

In case you thought that the potential to flip Justice Kennedy’s seat alone will bring us back to the constitutional promised land, think again. So long as the lower courts are not restrained, we will never return to the Constitution and the principles of the Declaration of Independence.

There is nothing more radical than a lower court granting standing to random plaintiffs to sue against non-coerced public prayer in county government meetings, prayers that have been going on since our founding. Yet a district judge in 2015 and the en banc decision of the radical Fourth Circuit in 2017 barred Rowan County, North Carolina, from opening council sessions with a prayer, similar to what our federal Congress does every day. [Last week], the U.S. Supreme Court refused to grant certiorari to the appeal from Rowan County, despite three years of being under a tyranny that the judges know is unconstitutional.

We shouldn’t even need to get into court precedent to understand our heritage and the true meaning of the Establishment Clause of the First Amendment. But just four years ago, in Town of Greece v. Galloway, Justice Kennedy wrote for the majority that as long as the prayer “comports with our tradition and does not coerce participation by nonadherents,” there is no room for judicial intervention. “To hold that invocations must be non-sectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech,” Kennedy wrote in the 2014 case.

The Fourth Circuit rejected precedent because this prayer, in the court’s estimation, was tantamount to coercion because it makes non-religious attendees feel like “outsiders” and “the overall atmosphere was coercive, requiring them to participate so they ‘would not stand out.’” (More on that case and how contrary it is to our founding here.)

For the U.S. Supreme Court not to take the appeal is egregious, especially given that the Sixth Circuit recently ruled the other way, triggering a circuit split. Justice Thomas, as has become his tradition recently, dissented from the decision to deny cert. Thomas noted, “The Fourth Circuit’s decision is both unfaithful to our precedents and ahistorical” and observed, “For as long as this country has had legislative prayer, legislators have led it.” Gorsuch joined the dissent.

There are a number of important observations to be made here in light of the U.S. Supreme Court vacancy, calling into question our ability to change the direction of the judiciary absent broader reforms:

• Aside from the contorted construction of the First Amendment inherent in this ruling, the courts are continuing to grant standing to random plaintiffs (as straw men for the ACLU) who have no justiciable injury-in-fact other than that their sensibilities are offended. The notion that you can even take such a policy to court is absurd and has grown the power of the courts to that of a legislature rather than an individualized adjudicative body. So long as the Left can lodge hundreds of frivolous lawsuits on important abstract policies every day and have the most liberal districts and circuits uphold them, the shift on the U.S. Supreme Court will not bring much relief. The ACLU and its offshoot organizations essentially have unlimited power so long as the U.S. Supreme Court doesn’t change its policies and more aggressively police the lower courts.

• The fact that Roberts knows there will be a more conservative fifth justice added to this wing of the court in the fall and still refused to take up the case is all the more disturbing and demonstrates that we cannot rely on him to overturn these insane lower court rulings expeditiously.

• There is no such thing as a conservative win at the U.S. Supreme Court. Lower court justices will always find hairs to split in any case that is not 100 percent identical and completely ignore precedent, something conservative lower court judges will never do in defiance of liberal U.S. Supreme Court opinions. This is why just hours after the high court affirmed the president’s full power to place conditions on entry, a California judge said that the president must find every single family entering illegally and unite them within 30 days. In another ludicrous ruling on immigration, a New York federal judge said yesterday that the Trump administration cannot promulgate a rule requiring the director of the Office of Refugee Resettlement to personally sign off on the release of illegal immigrant child detainees. Yes, we have no sovereignty, and the president has no powers to even establish some oversight before swamping the country with foreign nationals, who flood into our schools and communities and who often join MS-13. Chief Justice Roberts said that there are no limits to the president’s power to regulate entry into the country, but that will not stop lower courts from granting standing to illegal aliens to sue against every minute piece of policy.

This is all to say that unless the lower courts are dealt with, we will continue to suffer increasingly at the hands of the lower courts even as the membership on the U.S. Supreme Court officially gets better. The bottom line is: We don’t have five Clarence Thomases and will not get them any time soon.

It is incumbent upon conservatives in Congress to create a movement to reorient the power of the lower courts. Rather than the default being that any random court can shut down our heritage and system of governance for years until the U.S. Supreme Court grants relief – if ever – the injunction should automatically be placed on hold until and unless the U.S. Supreme Court takes up the case and affirms the ruling. Granting a congressional-created court supremacy power over the other branches of government is a case of the inmates running the asylum. If the U.S. Supreme Court refuses to act supreme to its own underlings, then why should we respect its supposed “supremacism” over the rest of us?

This article was originally published at ConservativeReview.com

Great news!  On June 26th, U.S. Supreme Court handed down a 7-2 ruling in favor of religious liberty!

The High Court ruled  in favor of a church in Missouri that sued the state after being denied taxpayer funds for a playground safety project because of a restriction that prohibited state taxpayer funding for religious institutions.

The case involves a Missouri preschool that was denied a state grant for rubberized playground surface material solely because it’s a church that runs the preschool.

Chief Justice John Roberts summed things up near the end of his majority opinion saying:

“The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution… It cannot stand.”

Illinois Family Institute praises the decision as a great victory for all people of faith!

This ruling makes is clear that government bodies and public programs cannot and should not discriminate against Christian organizations merely because they are religious. The U.S. Supreme Court reaffirmed the First Amendment right to freely exercise religious faith in the public square.

Christian organizations throughout the state of Illinois and across the country provide much-needed services to young students, senior citizens, the poor, addicted, and under-served. It’s wrong to treat them differently simply because their service is inspired by the Word of God or their love for Jesus Christ.

Christian Liberty vs. Special LGBTQIA “Rights”

The U.S. Supreme Court also announced they will take up the Masterpiece Cakes case out of Colorado. This case is about whether the government can punish people of faith for not participating in religious ceremonies with which they disagree.

Jack Phillips, who owns Masterpiece Cakes, had a complaint filed against him for not baking a cake for a so-called same-sex wedding ceremony. Phillips had provided countless services to other LGBTQ customers, but simply did not want to participate in a religious ceremony – a wedding – that violated his religious beliefs.

The government should not be punishing Christians who merely want to live and work by the dictates of their faith.

This is the first time the U.S. Supreme Court will take up a case that will decide the conflict between protected class status for same-sex attraction, sexual behavior and religious freedom. Please pray that they will rule wisely in this case.

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One day after the [Obergerfell v. Hodges] ruling, I received a press release from Pro-Polygamy.com  one of the largest Polygamy groups east of the Mississippi, located in Maine.  Their slogan is “Polygamy: The Next Civil Rights Battle.”   Last Sunday they followed up with another release of an editorial.   Both items complain, “all that Kennedy declared about the importance of marriage to those who choose same sex marriage (SSM) equally applies to others who choose unrelated consenting adult polygamy (UCAP).”

Mark Henkle of Pro-Polygamy states, “for UCAPs, only one obstacle to freedom remains to be overcome – the outstanding bigotry of big government still unconstitutionally mandating an arbitrary determinant of “two-person unions” for the definition of marriage. After that, polygamy will be included.”

Numerous commentators, and even Justices John Roberts and Samuel Alito, have also noted that the SCOTUS ruling contains no logical basis for prohibiting polygamy or practically any other limit on marriage. This supports the comment in my media statement that, “if marriage can mean anything, it ultimately means nothing. When marriage loses its meaning, society and children suffer.  When children suffer, government expands. When government expands, liberty contracts.”

By the way, homosexuals, bisexuals, polygamists, the polyamorous, are not the only ones looking for societal approval based upon sexual orientation.  This article on the blog of former U.S. Congressman Allen West referencing a more detailed and disturbing article from the Northern Colorado Gazette says there is a quietly growing group of “experts” claiming that pedophilia is a sexual orientation worthy of special rights and recognition.

One such group is the Institute for the Advanced Study of Human Sexuality in San Francisco. The IASHS lists, on its website, a list of “basic sexual rights” that includes “the right to engage in sexual acts or activities of any kind whatsoever, providing they do not involve nonconsensual acts, violence, constraint, coercion or fraud.” Another right is to, “be free of persecution, condemnation, discrimination, or societal intervention in private sexual behavior” and “the freedom of any sexual thought, fantasy or desire.” The organization also says that no one should be “disadvantaged because of age.”

For all practical purposes, the tax-funded sex education/abortion giant, Planned Parenthood, has made similar statements in defense of their school programs for years.

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This is a collection of random thoughts on the U.S. Supreme Court’s hearings on whether to deconstruct marriage and refashion it in accordance with the desires of homosexuals.

Some of my thoughts are in response to comments made by U.S. Supreme Court Justices, some are in response to comments made by the attorneys arguing for the deconstruction of marriage, and some are in response to commentary floating about the Internet. Following my random thoughts is a short list of questions that I wish SCOTUS had asked.

Thoughts

The Left says two men or two women who are raising children should be able to marry. Such a claim suggests that it is the presence of children that renders the relationship between their caretakers a marriage. Clearly, however, there are many adults who are raising children whose relationships do not constitute a marital-type of relationship. Few people are currently arguing, for example, that two brothers who love each other, express that love erotically, and are raising children together should be able to legally marry.

Law professor Ilya Somin writing for the Volokh Conspiracy blog  dismisses the ontological differences between men and women that homosexuals themselves affirm:

In addition to discriminating on their face, laws banning same-sex marriage are also in part based on sweeping (and often empirically dubious) generalizations about the abilities and social roles of men and women….

When homosexual men and women assert that they are erotically and romantically attracted only to members of their own sex, they are acknowledging that men and women are substantively and significantly different and that those differences are not merely anatomical. Is it so irrational then to argue that these substantive differences inform parenting?

Chief Justice John Roberts asked a pointed question that reflects the “sex discrimination theory” endorsed by Professor Somin:

[I]f Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?

This theory errs in that it presumes what it has not proved, which is that the sex of marriage partners is irrelevant to marriage. It simply presumes that sexual complementarity is not an essential constituent feature of marriage. It would be like saying, “12-year-old Sue loves 30-year-old Joe, and 27-year-old Ann loves 30-year-old Joe. Ann can marry Joe, and Sue can’t. Why isn’t that a straightforward question of age discrimination?”

It isn’t a straightforward question of age discrimination because in the case of the unique institution of marriage, the age of partners is integral.

Similarly, in the case of the unique institution of marriage, sexual differentiation is integral. Without it, a union ceases to be, in reality, marital.

Somin and many other marriage deconstruction advocates appeal to laws banning interracial marriages as apt analogies. But laws banning interracial marriages were wrong for the same reason laws permitting same-sex “marriages” are wrong: Both depend on wrong assumptions about the intrinsic nature of marriage. If marriage has a nature central to which is sexual differentiation, then marriage laws that recognize that ontological nature do not reflect invidious discrimination.

Moreover, anti-miscegenation laws, like marriage-deconstruction laws, embodied other serious ontological errors. Laws banning interracial marriage wrongly assumed that blacks and whites have different natures, while laws permitting same-sex “marriage” wrongly assume that men and women have identical natures.

Meanwhile a twittering tweeter over on SCOTUSblog.com seemed inordinately impressed with this statement from Mary Bonauto, one of the attorney’s arguing for marriage deconstruction:

In terms of the question of who decides, it’s not about the court versus the states. It’s about the individual making the choice to marry and with whom to marry, or the government.

Seriously, an attorney is arguing that every individual should be able to decide what the government should recognize as a marriage. If that’s the case, then current marriage criteria regarding blood kinship and numbers of partners need to be jettisoned as well.

Justice Anthony Kennedy oddly views the role of both the legislative and judicial branches of government as dignity-dispensing. Here’s yet another remarkable Kennedy statement:

I thought [dignity-bestowing] was the whole purpose of marriage.  It bestows dignity on both man and woman in a traditional marriage.  It’s dignity-bestowing, and these parties say they want to have that, that same ennoblement.

The whole purpose of marriage is to bestow dignity on sexually differentiated marital unions? Many Americans thought the inclusion of sexual differentiation in the legal definition of marriage was a recognition of the intrinsic nature of marriage and served to tie mothers and fathers to each other and to any children that may result from their sexual union, which in turn serves to protect the inherent needs and rights of children, which in turn serves the public good. The bestowal of dignity is decidedly not the “whole purpose of” the legal recognition of what marriage is, though it may be a beneficial consequence. In Kennedy’s alternate universe, which other relationship configurations merit the bestowal of dignity through access to legal marriage?  Incestuous unions? Incestuous homosexual unions? Polyamorous unions?

Even “dignity-bestowing” is largely a thing of the past. Large swaths of the population think no more of legal marriage than they do of co-habitation. But even prior to the “sexual revolution” that is responsible in large measure for the low regard with which the public holds marriage, the whole purpose of marriage never was solely or centrally to “bestow dignity” and “ennoblement” on man-woman unions.

Kennedy waxed foolish again:

Same-sex couples say…We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.

First, the government is involved in marriage precisely because the sexual union of one man and one woman is the type of union that naturally produces children. This is not to say that the government has any interest in ascertaining fertility or compelling procreation. But it is to say that if humans did not procreate through heterosexual intercourse, the government would have zero interest in recognizing and regulating marriage. If humans reproduced asexually, there would be no more reason for the government to be involved with marriage than there is for the government to be involved with recognizing and regulating platonic friendships.

Second, Kennedy inadvertently gets to the heart of the mission of homosexuals to reinvent marriage in their own image when he says that they want “the other attributes of marriage” in the hope that the dignity imputed to marriage will be imputed to their unions. But the dignity that inheres marriage derives from its nature—not the word “marriage” or the license. Nonetheless,  homosexuals seek to obliterate in law and the public consciousness all ontological distinctions between heterosexual marriage and homoerotic non-marriage.

Questions I wish the Supreme Court had asked:

What is marriage?

Does marriage have a nature that the government merely recognizes and regulates, or is it wholly a social construction with no intrinsic features?

If it has a nature, what are its essential, intrinsic features without which marriage ceases to be marriage?

Why should the criterion regarding sexual differentiation be jettisoned from the legal definition but the criterion regarding numbers of partners be retained?

What is the government’s interest in marriage?

Why does the government not recognize or regulate the union of those in platonic friendships as marriages?

What constitutes homosexuality?

Should those who experience other conditions similarly constituted be allowed to redefine marriage in accordance with their desires?

Let’s pray that wisdom informs SCOTUS’ ultimate decision in June.

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Written by Ryan T. Anderson

This week the 10th Circuit Court of Appeals issued an important ruling on Utah’s marriage amendment. This is the first time a circuit court has ruled on marriage since the U.S. Supreme Court’s ruling on the federal Defense of Marriage Act (DOMA) this time last year. In a 2-1 split decision, the 10th circuit ruled that Utah’s marriage amendment defining marriage as the union of a man and a woman violates the 14th Amendment of the U.S. Constitution.

The majority held that “the Fourteenth Amendment protects the fundamental right to marry” and that “a state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.” The decision will almost certainly be appealed.

Of course the Fourteenth Amendment protects the fundamental right to marry—but the Supreme Court decisions that established a fundamental right to marry understood marriage as the union of a man and a woman. In issuing today’s ruling, the court implicitly supplied its own, new answer to the central question in this debate: what is marriage?

The only way the 10th Circuit could reach its decision today was to smuggle in a view of marriage that sees it as an essentially genderless institution and then declare that the Constitution requires that the States (re)define marriage in such a way.

But our Constitution is silent on what marriage is. And there are good arguments on both sides of this debate. Judges should not insert their own policy preferences about marriage and declare them to be required by the Constitution.

Indeed, this is the message that Judge Paul Kelly delivered in his dissenting opinion in today’s case. Quoting Supreme Court Justice Samuel Alito, Judge Kelly explains: “‘Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law,’ at least when it comes to the States’ right to enact laws preserving or altering the traditional composition of marriage.”

Kelly continued:

The Constitution is silent on the regulation of marriage; accordingly, that power is reserved to the States, albeit consistent with federal constitutional guarantees. And while the Court has recognized a fundamental right to marriage, every decision vindicating that right has involved two persons of the opposite gender.

Kelly explained that we need not seek from the courts a single 50-state answer: “If the States are the laboratories of democracy, requiring every state to recognize same-gender unions—contrary to the views of its electorate and representatives—turns the notion of a limited national government on its head.”

In citing Justice Alito, Judge Kelly hit on an important point—that there are competing policy arguments on the definition of marriage and that in a system of limited constitutional self-government, the people and their elected representatives should be making these decisions.

Justice Alito’s opinion on DOMA cited my book, What Is Marriage? Man and Woman: A Defense, as an example of one view of marriage: a “comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life.” And he cited Jonathan Rauch as a proponent of the idea that marriage is a commitment marked by emotional union.

Alito explained that the Constitution is silent on which of these substantive visions of marriage is correct. The Court, he explained, should defer to democratic debate.

Indeed, whatever any individual American thinks about marriage, the courts shouldn’t redefine it. Marriage policy should be worked out through the democratic process, not dictated by unelected judges. The courts should uphold the freedom of the American people and their elected representatives to make marriage policy.

Last summer, when the Supreme Court struck down DOMA, Chief Justice John Roberts emphasized the limits of the majority’s opinion. He made clear that neither the holding nor its logic required redefining state marriage laws. The states remain free to define marriage as the union of one man and one woman.

If marriage ends up back at the U.S. Supreme Court again next year, the Court will be less likely to usurp the authority of citizens if it is obvious that citizens are engaged in this democratic debate and care about the future of marriage.

We must rally in support of our constitutional authority to pass laws defining marriage. We must make clear that court-imposed same-sex marriage via a Roe v. Wade-style decision will not settle the marriage debate any better than it has settled the abortion debate.

We must insist, with Judge Kelly, that judges “should resist the temptation to become philosopher-kings, imposing [their] views under the guise of constitutional interpretation of the Fourteenth Amendment.”

Ryan T. Anderson researches and writes about marriage and religious liberty as the William E. Simon Fellow at The Heritage Foundation. He also focuses on justice and moral principles in economic thought, health care and education, and has expertise in bioethics and natural law theory.

This article was first published at TheDailySignal.com.

Written by Ryan T. Anderson