The First Test

There were, and are, scholars and statesmen who believe that courts should not be granted the power to invalidate legislation in the name of the Constitution. In reaction to Chief Justice John Marshall's opinion in the 1803 case of Marbury v. Madison,1 Thomas Jefferson warned that judicial review would lead to a form of despotism.2 It is worth remembering that the power of judicial review is nowhere mentioned in the Constitution. The courts themselves have claimed this power based on inferences drawn from the Constitution's identification of itself as supreme law, and the nature of the judicial office.3 Yet even if we credit these inferences, as I am inclined to do, it must be said that early supporters of judicial review, including Chief Justice Marshall himself, did not imagine that the federal and state courts would exercise the sweeping powers they have come to exercise today. Jefferson and the critics were, it must be conceded, more prescient.123

As for Marshall's ruling in Marbury, a good case can be made that the power he actually claimed for the courts was quite limited. Remember: What the Supreme Court decided in that case was that the Court itself was forbidden by the Constitution to exercise original jurisdiction putatively conferred upon it by the Judiciary Act of 1789. Marshall reasoned that the Constitution, in Article III, fixed the Court's original jurisdiction, and Congress was powerless under the Constitution to expand it. According to the contemporary constitutional scholar Robert Lowry Clinton, all this meant was that the Court was relying on its own interpretation of the Constitution in deciding what it could and could not do within its own sphere. This was entirely consistent with its recognizing a like power of the other branches of government to interpret the Constitution for themselves in deciding what they could and could not do in carrying out their constitutional functions.4

However that may be, the power of the judiciary has expanded massively. This expansion began slowly. Even if we read Marbury more broadly than Professor Clinton reads it, treating it as a case in which the justices presumed to tell the Congress what it could and could not do, it would be another fifty-four years before the Supreme Court would do it again. And it could not have chosen a worse occasion.

From Dred Scott to Brown

In 1857, Chief Justice Roger Brooke Taney handed down an opinion for the Court in the case of Dred Scott v. Sandford.5 That opinion, which among other things declared even free blacks to be non-citizens, and Congress to be powerless to restrict slavery in the federal territories, intensified the debate about slavery and dramatically increased the prospects for civil war.

Dred Scott was a classic case of judicial usurpation. Without constitutional warrant, the justices manufactured a right to hold property in slaves that the Constitution nowhere mentioned or could reasonably be construed as implying. Of course, Taney and those who joined him in the majority depicted their decision as a blow for constitutional rights and individual freedoms. They were protecting the minority (slaveholders) against the tyranny of a moralistic majority who would deprive them of their property rights. The reality was that the judges were exercising what in a later case would be called "raw judicial power"6 to settle a morally charged debate over a divisive social issue in the way they personally favored.

It took a civil war and the constitutional amendments (especially the Fourteenth Amendment) made possible by the Union victory to reverse Dred Scott v. Sandford.

The Dred Scott decision is a horrible blight on the judicial record. We should remember, though, that while it stands as an example of judicial activism in defiance of the Constitution, it is also possible for judges to dishonor the Constitution by refusing to act on its requirements. Judges who are more devoted to a cause than to the Constitution can--and sometimes have--gone wrong by letting stand what should have been struck down.

In the 1896 case of Plessy v. Ferguson,7 for example, legally sanctioned racial segregation was upheld by the Supreme Court despite the Fourteenth Amendment's promise of equality. Plessy was the case in which the justices announced their infamous "separate but equal" doctrine, a doctrine that was a sham from the start. Separate facilities for blacks in the South were then, and had always been, inferior in quality. Indeed, the whole point of segregation was to embody and reinforce an ideology of white supremacy that was utterly incompatible with the principles of the Declaration of Independence and the Fourteenth Amendment to the Constitution. The maintenance of a regime of systematic inequality was the object, point, and goal of segregation. As Justice John Harlan wrote in dissent, segregation should have been declared unlawful because the Constitution of the United States is colorblind and recognizes no castes.8

Lochner and Freedom of Contract

Although more than a half-century would have to pass before the Supreme Court got around to correcting its error in Plessy in the 1954 case of Brown v. Board of Education,9 that did not prevent the Court in the meantime from repeating the usurpations that had brought it to shame in the Dred Scott case. The 1905 case Lochner v. New York10 concerned a duly enacted New York statute limiting to 60 the number of hours per week that the owner of a bakery could require or permit his employees to work. Industrial bakeries are tough places to work, even now. They were a lot tougher then. Workers were at risk of pulmonary disease from breathing in the flour dust, and in constant jeopardy of being burned by hot ovens, especially when tired and less than fully alert. The New York state legislature sought to protect workers against exploitation and abuse by limiting working hours. Yet the Supreme Court said no.

Citing an individual right to "freedom of contract" purportedly implied by the Due Process Clause of the Fourteenth Amendment, the justices struck down the law as an unconstitutional interference by the state in private contractual relations between employers and employees. The Court justified its action with a story not dissimilar to the one it told in Dred Scott. Again, it claimed to be protecting the minority (owners) against the tyranny of the democratic majority. It was striking a blow for individual civil rights and liberties. It was restricting government to the sphere of public business and getting it out of private relations between competent adults--namely, owners and workers.

The truth, of course, is that the Court was substituting its own laissez-faire philosophy of the morality of economic relations for the contrary judgment of the people of New York acting through their elected representatives in the state legislature. On the controversial moral question of what constituted authentic freedom and what amounted to exploitation, unelected and democratically unaccountable judges, purporting to act in the name of the Constitution, simply seized decision-making power.11 Under the pretext of preventing the majority from imposing its morality on the minority, the Court imposed its own morality on the people of New York and the nation.

Just as Dred Scott fell, Lochner would eventually fall. It would be brought down not by a civil war, but by an enormously popular president fighting a great depression. Under the pressure of Franklin Roosevelt's plan to pack the Supreme Court, the justices in 1937 repudiated the Lochner decision, and got out of the business of blocking state and federal social welfare and worker protection legislation. Lochner itself was relegated to ignominy, as Dred Scott had been. Indeed, the term "Lochnerizing" was invented as a label for judicial rulings that usurped democratic lawmaking authority and imposed upon society the will of unelected judges under the pretext of giving effect to constitutional guarantees of liberty.

From the Bedroom. . .

For many years, the Court took great care to avoid the least appearance of Lochnerizing. In 1965, for example, when the justices in a set-up case called Griswold v. Connecticut12 struck down a state law against contraceptives in the name of an unwritten "right to marital privacy," Justice William O. Douglas explicitly denied that he was appealing to the principle of Lochner.13 Indeed, to avoid invoking Lochner's claim of a "substantive due process" right in the Fourteenth Amendment, Douglas went so far as to say that he had discovered the right to privacy in "penumbras formed by emanations" of a panoply of Bill of Rights guarantees that seem to have something to do with protecting privacy--such as the Third Amendment, which prohibits the government from quartering soldiers in private homes in peace time, and the Fourth Amendment, which forbids unreasonable searches and seizures.

Griswold, though plainly usurpative, was not an unpopular decision. The Connecticut statute it invalidated was rarely enforced and the public cared little about it. The significance of the statute was mainly symbolic, and the debate about it was a symbolic struggle. The powerful forces favoring a liberalization of sexual mores in the 1960s viewed the repeal of such laws--by whatever means necessary--as essential to discrediting traditional Judeo-Christian norms about the meaning and significance of human sexuality. However, the Court was careful to avoid justifying the invalidation of the law by appealing to sexual liberation or individual rights of any kind. On the contrary, Douglas's opinion defends the putative right to marital privacy as necessary to preserve and protect the institution of marriage.

In Douglas's account of the matter, it was not for the sake of "sexual freedom" that the justices were striking down the law, but rather to protect the honored and valued institution of marriage from damaging intrusions by the state. Otherwise uninformed readers of the opinion might be forgiven for inferring mistakenly that the ultra-liberal William O. Douglas was in fact an archconservative on issues of marriage and the family. They would certainly have been justified in predicting--wrongly, as it would turn out--that Douglas and those justices joining his opinion would never want to see the Griswold decision used to break down traditional sexual mores or facilitate non-marital sexual conduct.

A mere seven years later, however, in the case of Eisenstadt v. Baird,14 the Court seemed to forget everything it had said about marriage in the Griswold decision, and abruptly extended the putative constitutional right to use contraceptives to non-married persons. A year after that, the justices, citing Griswold and Eisenstadt, handed down their decision legalizing abortion in Roe v. Wade. And the culture war began.

. . .to the Womb

The Roe decision was pure Lochnerizing. Roe did for the cause of abortion what Lochner had done for laissez-faire economics, and what Dred Scott had done in the cause of slavery. The justices intervened in a large-scale moral debate over a divisive issue of social policy, short-circuiting democratic deliberation and imposing on the nation a resolution lacking any justification in the text, logic, structure, or original understanding of the Constitution. Indeed, Justice Harry Blackmun, writing for the majority, abandoned Griswold's metaphysics of "penumbras formed by emanations" and grounded the putative constitutional right to feticide in the Due Process Clause of the Fourteenth Amendment--just where the Lochner court had claimed to discover the putative right to freedom of contract. It was in Roe that dissenting Justice Byron R. White described the Court's ruling as an "act of raw judicial power."

Having succeeded in establishing a national regime of abortion on demand by judicial fiat in Roe, the cultural left continued working through the courts to get its way on matters of social policy on which the left faced significant popular resistance. Chief among these areas was the domain of sexual morality. Where state laws embodied norms associated with traditional Judeo-Christian beliefs about sexuality, marriage, and the family, left-wing activist groups brought litigation claiming that the laws violated Fourteenth Amendment guarantees of due process and equal protection, and First and Fourteenth Amendment prohibitions on laws respecting an establishment of religion.

The key battleground became the issue of homosexual conduct. Initially, the question was whether it could be legally prohibited, as it long had been by laws in the states. Eventually, the question became whether homosexual relationships and the sexual conduct around which such relationships are integrated must be accorded marital or quasi-marital status under state and federal law.

Homosexuality and the Right to Privacy

In 1986, the Supreme Court heard a challenge to Georgia's law forbidding sodomy in a case called Bowers v. Hardwick.15 Michael Hardwick had been observed engaging in an act of homosexual sodomy by a police officer who had lawfully entered Hardwick's home to serve a summons in a matter not involving a sexual offense. Left-wing activist groups treated Hardwick's case as an opportunity to win the invalidation of sodomy laws by extending the logic of the Court's "right to privacy" decisions. This time, however, they failed. In a five-to-four decision written by Justice White, the Court upheld Georgia's sodomy statute as applied to homosexual sodomy. The justices declined to rule one way or the other on the question of heterosexual sodomy, which the majority said was not before the Court.

The Bowers decision stood until 2003, when it was reversed in the case of Lawrence v. Texas,16 a case which set the stage for the current cultural and political showdown about the nature, definition, and meaning of marriage. In Lawrence, the Court held that state laws forbidding homosexual sodomy lacked a rational basis and were therefore nothing more than invasions of the rights of consenting adults to engage in the type of sexual relations they preferred. Writing for the majority, Justice Anthony Kennedy claimed that such laws are insults to the dignity of homosexual persons. As such, they are, he insisted, constitutionally invalid under the doctrine of privacy whose centerpiece was the Roe decision.

Lochnerizing Lawrence

Kennedy went out of his way to say that the Court's ruling in Lawrence did not treat the issue of same-sex marriage or whether the states and the federal government were under an obligation to give official recognition to same-sex relationships or grant benefits to same-sex couples.17 Writing in dissent, however, Justice Antonin Scalia said bluntly: "Do not believe it."18 The Lawrence decision, Scalia warned, eliminated the structure of constitutional law under which it could be constitutionally legitimate for lawmakers to recognize any meaningful distinctions between homosexual and heterosexual conduct and relationships.

On this point, many enthusiastic supporters of the Lawrence decision and the cause of same-sex "marriage" agreed with Scalia. They saw the decision as having implications far beyond the invalidation of sodomy laws. Noting the sweeping breadth of Kennedy's opinion for the Court--despite his representations that the justices were not addressing the marriage issue--they viewed the decision as a virtual invitation to press for the judicial invalidation of state marriage laws that treat marriage as the union of a man and a woman. Indeed, there was already litigation on this subject going forward in the states: It had begun in Hawaii in the early 1990s, where a State Supreme Court ruling invalidating the Hawaii marriage laws was overturned by a state constitutional amendment. Lawrence turned out to be a new and powerful weapon to propel the movement forward and embolden state court judges who were inclined toward ruling that laws treating marriage as the union of a man and a woman lacked a rational basis and were therefore invalid.

The boldest of the bold were four liberal Massachusetts Supreme Judicial Court justices who ruled in the case of Goodridge v. Massachusetts Department of Public Health19 that the Commonwealth's restriction of marriage to male-female unions was a violation of the state constitution. The state legislature requested an advisory opinion from the justices about whether a scheme of civil unions akin to the one put into place a couple of years earlier by the Vermont state legislature (when that state's Supreme Court had issued a similar ruling) would suffice. However, the four Massachusetts justices, over dissents by the three justices who had originally dissented in the case, said "No, civil unions will not do."20 And so unelected and electorally unaccountable judges imposed same-sex marriage on the people of Massachusetts.

In Defense of Marriage

How are defenders of marriage as traditionally understood to respond to these developments? First, I believe, it is important to make clear that what is going on in the state and federal courts is Lochnerizing on a massive scale. Lawrence and Goodridge are not Brown v. Board of Education. They are not Loving v. Virginia21 (1964), which invalidated laws forbidding inter-racial marriage. Contrary to the claims of their supporters, Lawrence and Goodridge do not vindicate principles of equality. Rather, they impose a particular set of cultural leftist doctrines about the nature, meaning, and moral significance of sexuality and marriage. What they create is not equality or neutrality; it is rather, a regime of law and public policy that embodies these sectarian doctrines.

These decisions shift the meaning of marriage for everyone. They do not expand eligibility for marriage, as supporters sometimes claim; rather, they redefine the institution and, strictly speaking, abolish it. The idea long embodied in our law of marriage, that it is the one-flesh union of spouses consummated, actualized, and integrated around acts fulfilling the behavioral conditions of procreation--acts which are the biological foundation of the comprehensive, multilevel sharing of life that marriage is--literally is abolished.22 The link between marriage and procreation and the nurturance and education of children in a familial context uniquely apt to serve their welfare is finally and decisively severed. And all of this is done without democratic deliberation or the resolution of disputed questions by the people acting through their elected representatives.

So there is a double wrong and a double loss. There is a crime with two victims: The first and obvious victim is the institution of marriage itself; the second is the system of deliberative democracy. However, there will likely be a third victim: namely, federalism. For some same-sex partners "married" in Massachusetts will, in the nature of things, move to Indiana, and West Virginia, and North Dakota, and South Carolina, and Arizona. They will demand that these states accord "full faith and credit" to the legal acts of Massachusetts by honoring Massachusetts marriage licenses. The states will at least initially try to resist, invoking their own laws and the federal Defense of Marriage Act, but they will eventually lose. Liberal judges are determined to spread their gospel of sexual liberationism. They will strike down state and federal laws protecting the power of states to refuse to recognize out-of-state same-sex "marriages." They will stress the importance of the portability of marriage across state lines, and the need for people to be able to structure their lives on the assumption that if they are married in Massachusetts, they don't suddenly become unmarried when they visit Mississippi or move to Michigan.

The Protection of Marriage

Given what has become the entrenched understanding of the authority of courts exercising the power of judicial review, there is no alternative, in my judgment, to amending the Constitution of the United States to protect marriage. The Massachusetts state legislature has made an initial move toward amending the state constitution to overturn Goodridge, but the outcome is uncertain, and the process of amending the Constitution of the Commonwealth of Massachusetts is lengthy and arduous. Even if the pro-marriage forces in Massachusetts ultimately succeed, liberal judges in other states are not far behind their colleagues on the Supreme Judicial Court of Massachusetts.

And hovering over the entire scene, like the sword of Damocles, is the Supreme Court of the United States, which could at any time act on what Justice Scalia has rightly identified as the logic of the Lawrence decision to invalidate state marriage laws across the board. You may think: "They would never do that." Well, I would echo Justice Scalia: "Do not believe it." They would. And if they are not preempted by a federal constitutional amendment on marriage, they will. They will, that is, unless the state courts get there first, leaving to the Supreme Court of the United States only the mopping up job of invalidating the Defense of Marriage Act and requiring states to give "full faith and credit" to out-of-state same-sex "marriages."

The Federal Marriage Amendment

Supporters of marriage are not of a single mind about what a federal amendment to protect marriage should accomplish. In my judgment, the best approach is that embodied in the Federal Marriage Amendment (FMA) that has been proposed in the United States Senate by Wayne Allard (R-CO) and in the House of Representatives by Marilyn Musgrave (R-CO). That amendment defines marriage in the United States as the union of a man and a woman; preserves the principle of democratic self-government on the issue of civil unions, domestic partnerships, and other schemes under which some of the incidents of marriage may be allocated to non-married persons; and respects principles of federalism under which family law is primarily the province of the states rather than the national government.

Some conservative critics of the FMA fault the proposed amendment for not going far enough. They would prefer an amendment that would have the additional feature of banning even legislatively adopted state schemes of civil union and domestic partnership. I myself oppose such schemes, but I do not think it is necessary or politically feasible to attempt to deal with this issue at the federal constitutional level. So long as marriage is protected by an understanding--implicit in the terms of the FMA--that states may not create "faux marriages" by predicating rights, benefits, privileges, and immunities on the existence, recognition, or presumption of sexual conduct or relationships between unmarried persons, I am content to leave the question of civil unions and domestic partnerships to the people of the states acting through the processes of deliberative democracy.

Other conservative critics of the FMA believe that it goes too far by removing from the individual states the authority to define marriage as they see fit. Many of these critics agree that a federal constitutional amendment is needed, but believe that it should do no more than prevent the judicial imposition of same-sex marriage nationwide, whether by judicial action manufacturing a federal constitutional right to same-sex marriage or by a ruling that Massachusetts same-sex marriages must be given "full faith and credit" by other states when same-sex couples from Massachusetts move into those states.

My own view, however, is that we need a uniform national definition of marriage as the union of one man and one woman. Here is why: Marriage is fundamental. Marriage is the basis of the family, and it is in healthy families that children are reared to be honorable people and good citizens. Therefore, marriage and the family are the basic units of society. No society can flourish when they are undermined. Until now, a social consensus regarding the basic definition of marriage meant that we did not need to resolve the question at the federal level. Every state recognized marriage as the exclusive union of one man and one woman. (The federal government did its part at one point in our history to ensure that this would remain the case by making Utah's admission to the Union as a state conditional upon its banning polygamy.)

The breakdown of the consensus certainly does not eliminate the need for a uniform national definition. If we do not have one, then marriage will erode either quickly--by judicial imposition, un-less judges are stopped--or gradually by the integration into the formal and informal institutions of society of same-sex couples who, after all, possess legally valid marriage licenses from some state.23 In the long run, it is untenable for large numbers of people to be considered married in one or some states of the United States yet unmarried in others. As Abraham Lincoln warned it would be with the evil of slavery in his time, it is inevitable that the country will go "all one way or all the other." Slavery would either be abolished everywhere or it would spread everywhere. The same is true of same-sex "marriage," in the long run--and perhaps even in the not-so-long run.

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. This lecture is part of the Russell Kirk Memorial Lectures series.