The Constitution Doesn’t Settle the Marriage Debate

Robert P. GeorgeFirst Things

A key question, perhaps the key question, this Court is being called on to address is whether the Constitution of the United States chooses between competing moral understandings of the nature, value, and social purposes of marriage, thus settling the question of how marriage is to be defined. On reflection, I believe your honor will see that it does not. Rather, the Constitution leaves the matter, as it leaves most matters of substantive law where choices between competing moral understandings must be made, for resolution in the forums of democratic deliberation and decision-making, including, in the case of federal law, the Congress of the United States.

Laws characteristically embody and reflect moral judgments. This is true of the law of contract and the law of murder, and it is no less true of the law of marriage. Laws should be made carefully so that they embody sound understandings of good and bad, right and wrong, justice and injustice; but as careful thinkers about law from Aristotle in ancient Greece to Dr. Martin Luther King in our own time have made clear, laws cannot be morally neutral, nor should we try to make them so. Efforts to mask the moral judgments embodied and expressed in our laws have no effect other than to wrap those judgments in a cloak of obscurity—creating a mere illusion of neutrality.

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