National Affairs Rory Leishman

While campaigning for president in 2008, Barack Obama repeatedly stated his opposition to same-sex marriage. That, to say the least, was a deception.

While purporting to uphold traditional marriage as the union of a man and a woman, Obama said he would vote to repeal the Defence of Marriage Act (DOMA), a statute signed into law by former President

Bill Clinton that allows any state to refuse to recognize the legality of a so-called marriage contracted by a same-sex couple in another jurisdiction. While Obama, as president, at least initially instructed the Justice Department to go on defending the constitutional validity of DOMA, now he has abandoned even this support for traditional marriage. On Feb. 23, United States Attorney General Eric Holder revealed that “after careful consideration,” Obama has decided that DOMA is unconstitutional.

Specifically, Obama now holds that homosexuals have a right to marry under the equal protection component of the Fifth Amendment to the United States Constitution. The legislators who enacted the Fifth Amendment would have been amazed by this suggestion. In no way did they intend to confer an equality right to marry upon same-sex couples. The very idea is preposterous.

But of course, liberal politicians like Obama have no regard for the original understanding of the Constitution. And the same goes for judicial activists. Thus in an entirely unprecedented ruling in Roe v. Wade (1973), the United States Supreme Court ruled that women have a right to abortion in the 14th Amendment. In a scathing dissent, Justice Byron White aptly denounced the ruling as an illegitimate exercise in raw judicial power. Regardless, with this arbitrary decree in Roe, the majority of the Court quashed laws restricting abortion in 46 states.

Now, Obama is inviting the courts to do the same to laws in 45 states upholding the traditional definition of marriage. In 31 of these states, the people backed these laws in referenda, but that, too, is of no account to liberal politicians and judges. On March 1, California Attorney General Kamal Harris urged a federal appeals court to overturn a referendum imposing a ban on same-sex marriage on the ground that it violates the equal protection clause of the 14th Amendment.

So far, most judges have rejected such constitutional challenges to the traditional definition of marriage. In reasons for the majority of the New York State Court of Appeals in Hernandez v. Robles (2006), Justice Robert Smith wrote: “it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.”

In supporting Obama’s abandonment of DOMA, Holder cited numerous studies which purport that “children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.” But all such studies are worthless. As Smith noted in Hernandez: “what they show, at most, is that rather limited observation has detected no marked differences. More definitive results could hardly be expected, for until recently few children have been raised in same-sex households, and there has not been enough time to study the long-term results of such child-rearing.”

While the United States Supreme Court has yet to rule on same-sex marriage, it has eloquently defended traditional marriage. In an anti-polygamy case, Murphy v. Ramsey (1885), the Court said: “certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth… than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.”

The language is quaint, but the truth stands: judges in Canada as well as the United States should remain no less zealous to sustain the sure foundation of traditional marriage in the laws and the Constitution.