The question before the Supreme Court in Obergefell was not whether a male-female marriage policy is the best or whether government-recognized same-sex marriage is better, but only whether anything in the Constitution specifically took away the power of the people to choose their marriage policy. Yet the Court spoke almost exclusively about its \u201cnew insights\u201d\u009d into marriage, and was virtually silent on the Constitution. That\u2019s because it had no choice. Our Constitution is itself silent on what marriage is; We the People retain the authority to make marriage policy.<\/p>\n
The Court claimed to show that the marriage policy that has existed in the United States for all its history is now prohibited by the Constitution. It failed to do that. As I explain in my forthcoming book, Truth Overruled: The Future of Marriage and Religious Freedom, what the Court actually did was to assume that marriage is an essentially genderless institution and then announce that the Constitution requires states to adopt that same vision of marriage in their laws.<\/p>\n
This is all the more remarkable, given that during oral arguments on Obergefell Justice Kennedy pointed out that marriage as the union of man and woman \u201chas been with us for millennia. And it\u201d\u201dit\u2019s very difficult for the Court to say, oh, well, we\u201d\u201dwe know better.\u201d\u009d Kennedy at least pretended to be reluctant to redefine marriage judicially. Redefining marriage to include same-sex relationships has, Kennedy pointed out, only been around for ten years. And, he added, \u201c10 years is\u201d\u201dI don\u2019t even know how to count the decimals when we talk about millennia.\u201d\u009d<\/p>\n