I’ve always respected people who refuse to give up.
I had a great example of that growing up. My father had a very successful career. Humble man that he is, he doesn’t talk about himself very much (so I have to — and it’s great). But when, as his son, I would ask what made him successful, he often told me that it came down to tenacity. And boy, he was right. If I ever found a man who was willing to work hard and refuse to quit until the job was done, it was him. He would often chip away at things even when the circumstances seemed bleak. That didn’t matter to Dad. Persevering was the right thing to do, so that’s what he did. And eventually, it always paid off.
The same truth applies in the legal field. Despite the nearly 50-year reign of Roe v. Wade, pro-life lawyers never gave up the fight for the sanctity of life. The efforts of their hard work may finally pay off this term as the Supreme Court considers Dobbs v. Jackson Women’s Health Organization, in which we may finally have the chance to see Roe overruled. It’s paying off in the religious-liberty field as well. Despite over 70 years of bad Establishment Clause decisions and almost 30 years of bad Free Exercise decisions, conservative lawyers have made progress at securing wins for religious liberty.
But what about marriage? Will we have the same tenacity with that issue?
For anyone familiar with the show Parks and Recreation, I fear that when it comes to marriage, the relationship between conservative leadership and the federal judiciary has been like the relationship between Chris Traeger and Ben Wyatt. Whenever someone came to Chris with an idea, he would get excited, say that he loved it, and then ask Ben, “Can we do it?” Ben would give a one-word response: “No.” “Dang, that’s a shame!” Chris would yell. But beyond that, he wouldn’t do anything. So in the same way, Republicans ate up Christian zeal for the sanctity of marriage leading up to the Supreme Court’s decision in Obergefell v. Hodges. But when the Supreme Court legalized same-sex marriage, what did most Republicans say? “Oh, darn! That’s outrageous! I can’t believe the Supreme Court did that! But, what can you do?”
And so just like that, the willingness to fight for the sanctity of marriage among many notable conservatives evaporated. There are notable exceptions, of course. For instance, here in Alabama, there was Glenn Murdock, Tom Parker, and most notably, Roy Moore. But after the API case in 2016, many thought the fight was over.
However, on December 10, 2021, Alabama Supreme Court Chief Justice Tom Parker issued an important concurring opinion in Porter v. Porter. While Porter did not involve same-sex marriage, Chief Justice Parker took the opportunity to discuss what the government has the authority to do when it comes to marriage. In short, Chief Justice Parker explained that because the “relationship of marriage was designed by the Creator … [n]o civil government was its originator, so none has [the] power to define its essence.” Rather, the nature of marriage is defined “by its Architect, in His written word and in the natural order.” That means that marriage has to be between “one man and one woman.” Governments have the power to define marriage only “as long as they act consistently with the divinely established nature and boundaries of the institution.”
The Chris Traegers of the conservative movement probably just pulled their hair out. But the fact is, despite the fact that lots of people wish for this issue to go away so they won’t have to deal with it, good jurists won’t settle. Truth matters. The Constitution matters. And God-given rights, such as the right to marry, matter.
Late last year, U.S. Supreme Court Justice Clarence Thomas, joined by Justice Samuel Alito, issued a concurring opinion in Davis v. Ermold reminding the nation that Obergefell was wrongly decided and should be overruled. In his Porter concurrence, Chief Justice Parker joined them in reminding the nation that hope is not lost.
The conservative movement has had success in fighting for life and religious liberty because it refused to give up. I hope that the writings of Clarence Thomas and Tom Parker will remind lawyers that there is hope for restoring the sanctity of marriage. And just like my father, whose tenacity drove him to succeed by chipping away at a problem until he prevailed, I hope that we never give up.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com