In the marriage cases pending before the Supreme Court, the parties and amici defending the validity of California’s Proposition 8 and the Federal Defense of Marriage Act have argued that the Constitution permits the state and federal governments to reserve the status and privileges of marriage to “marriage,” as traditionally defined. To my knowledge, no one in the cases has argued that the Constitution might prohibit the state and federal governments from abandoning this traditional definition.
There is good reason, however, to conclude that in one critical respect, the Constitution prohibits the redefinition of marriage. On this Father’s Day, I will begin by sketching how the Due Process Clause, as strictly construed and originally understood, establishes a presumption in favor of the natural father and mother’s trusteeship over the child’s liberty. In subsequent posts, I will explain how the old marriage has complemented this presumption, and how the new marriage unlawfully undermines it. Continue Reading →