William Duncan of Marriage Law Foundation in SCOTUSblog's Marriage Symposium


William Duncan, director of the Marriage Law Foundation, contributes to the SCOTUSblog symposium on marriage:

[One strategy to redefine marriage has been] to have a constitutional challenge to the legal recognition of the social institution of marriage brought by highly motivated and well-financed opponents with the collusion of the titular defendants who would offer none or only a pro forma defense. Thus would the voters of California and the taxpayers of the United States be deprived of a say in this most fundamental legal matter.

It worked in state courts in Iowa, California, and Connecticut. In the former, the attorney general did not bother to defend the state’s marriage law. In the latter two instances, the attorney generals’ defense was hardly robust and the failure was noted and relied on by the courts in ruling for a constitutional right to same-sex marriage.

This amounts, of course, to de facto executive nullification of the laws. Attractive to litigants, it would be a disaster for our legal system. In an adversarial system, taking a dive can amount to making law. Where the executive has not been expressly granted that authority, its exercise by that branch is illegitimate. But having seen in state courts that it may work, the temptation to overreach may be overwhelming. That temptation cannot be entertained and certainly not rewarded.

As important as marriage is, and it is foundational, it’s not the only thing at stake. If we lose not only marriage but also sustain a grievous injury to limited government in the process, that would be a double tragedy.