Can the States Redefine Marriage?

Guest blog by Jacquline Oster

Supreme Court Justice Anthony Kennedy has announced his retirement, and President Trump has just nominated Republican Brett Kavanaugh to take his place.  This means that Obergefell v. Hodges—which Kennedy authored—could be reversed, and states would regain the power to maintain their own marriage laws.  Virginia’s marriage amendment, which a growing number are seeking to repeal, may become more than an artefact of Virginia’s constitution.  Many right-leaning figures are, once again, trying to discern whether states have the right to redefine or even recognize marriage, while some argue that government “involvement” in marriage is contrary to human liberty.

Though we believe today that government should uphold and protect human freedom, we conceive of liberty as licensure to live and do as we please.  But when we allow ourselves to be led by irrational fixations, whims, and ideas, we in fact become subject to the unnatural inclinations that we suffer in response to the Fall.  In his encyclical, Libertas Praestantissimum, Pope Leo XIII writes that while “other animate creatures follow their senses, seeking good and avoiding evil only by instinct, man has reason to guide him in each and every act of his life.”[1]  Because this gift of reason allows us to know the Good and to freely choose the means through which we work to attain it, it follows that human liberty is inextricably tied to our rational faculty.  Our intellects, however, have been corrupted by sin; therefore, we have laws to guide and perfect them as we submit to authorities who uphold the natural law as instituted by God.  In his commentary on the words of our Lord (“Whosoever committeth sin is a slave to sin”), St. Augustine says that the intellect, because of its condition, “necessarily stands in need of light and strength to direct its actions to good and restrain them from evil.  Without this, the freedom of our will would be our ruin.”[2]  Without legal structures to guide and reinforce us in good habits and ways of living, we would fall prey to the evil powers that weigh on our nature.  It is foolish to think that the fullest expression of human liberty is an ungoverned life:  to do so would deny the end to which we, as human beings, are ordered by God, whose created order provides a framework for human law.  Although it does not enforce every aspect of the natural law, government must recognize certain fundamental truths that are essential for the wellbeing of society.

Those who view the institution of marriage chiefly as a sacrament or expression of religious belief may have forgotten that marriage is a natural and pre-Christian institution that was instituted by God in the beginning as the first society and foundation of a political community.  Men and women benefit each other with the unique strengths that they bring to their union, which allows virtue to flourish through gifts of self-sacrifice and commitment.  A traditional, legally-recognized marriage regulates and preserves both sexualities from opportunism and abuse, by empowering women with a husband’s protection and preventing men from indulging the roving, uncommitted tendencies to which they are often inclined.  This complementary relationship is inherently ordered to the procreation and care of children, whom numerous studies have shown to fare better when they are raised by both mothers and fathers.[3]  A safe and stable environment, where children are nurtured by understanding mothers and challenged by affirming fathers, is essential for the continuation of the political community and the good that it upholds.  No individual is complete and self-sufficient, and governments cannot function if they fail to recognize the fundamental relationships that allow societies to even exist.  Marriage, which brings together the two most basic parts of humanity, is the cornerstone of them all.

The belief that states can supply new definitions of marriage, or that government should not recognize marriage at all, is an untenable position.  If we think that the government has the right to safeguard human dignity and freedom—and if we think that it ought to promote human flourishing by affirming fundamental truths of nature such as the right to life, liberty, and property—then it can and should recognize the institution of marriage as it has and always will be:  the exclusive, conjugal, and complementary union of a man and a woman who, through their similarities and differences, complete and perfect one another as they give life to new souls who will benefit from the strength of a father, the gentleness of a mother, and the security of their civilly-recognized union with each other.

In his dissenting opinion to Obergefell v. Hodges, Justice Roberts claimed that, in its intentional misreading of what is clearly implied by the Constitution, the Supreme Court was abusing its power and violating the democratic process which, he believed, is enshrined in law and not in “any particular school of social thought.”[4]  While it is fair to acknowledge the bias and audacity of the justices who sought to redefine one of the most ancient social institutions, we should view the outcome of Obergefell v. Hodges not only as an affront to democracy, but as a failure of the government to rightly order society by recognizing an institution that is essential to human flourishing and manifest in the created order.  The Supreme Court was wrong in its failure to uphold natural law, and so are any states whose constitutions allow for same-sex marriage.

Because the majority vote currently determines the principles and statutes by which we live, let us try to be a more virtuous people, committed to protecting the most basic realities of nature.  We ought not to eliminate civil marriage, but to uphold the very structure that is the cornerstone of all civil societies.  Only then will we be most free to achieve one of the greatest human ends:  the gift of oneself to another who can, with his or her complementary nature, complete and perfect the other in a beautiful, indissoluble union that is at once sacrificial and life-giving.


[1] Leo XIII. “Libertas Praestantissimum.” The Holy See, 20 June. 1888,
[2] Leo XIII. “Libertas Praestantissimum.” The Holy See, 20 June. 1888,
[3] Johnston, Jeff. “Kids Need a Mom and a Dad – That’s What the Research Shows.” Focus On the Family. N.p., 27 Mar. 2018. Web. 10 July 2018.
[4] P. 22

Jacquline Oster is a 2018 Grassroots Intern with The Family Foundation, and attends Thomas More College in New Hampshire.