Just as citizens are free to redefine marriage to include same-sex relationships, so too are citizens free to retain the historic definition of marriage as the union of a man and a woman—as citizens in a majority of states have done. Our federal Constitution is silent on what marriage is. Judges should not insert their own policy preferences about marriage and declare them to be required by the Constitution. As Feldman notes, “it is not for this Court to resolve the wisdom of same-sex marriage.

Does the U.S. Constitution require the states to redefine marriage? On September 3, a federal judge said no. Judge Martin L.C. Feldman upheld Louisiana’s constitutional authority to define marriage as the union of a man and a woman—as 78 percent of Louisiana voters did in 2004.

Feldman noted that Louisiana’s marriage law furthers two important interests: “linking children to an intact family formed by their biological parents, as specifically underscored by Justice Kennedy in Windsor” and “safeguarding that fundamental social change … is better cultivated through democratic consensus.” That is, Feldman noted the two central issues in this debate—the policy question: What is marriage, and the legal question: Who gets to define marriage.

Feldman ruled that, consistent with the U.S. Constitution, citizens and their elected officials should get to define marriage, and they can define it as the union of man and woman if they choose to. In response to those who argue that there is no rational basis for such marriage laws, Feldman writes: “The Court is persuaded that a meaning of what is marriage that has endured in history for thousands of years, and prevails in a majority of states today, is not universally irrational.”

Feldman cites the Supreme Court’s decision in the federal Defense of Marriage Act (DOMA) case, U.S. v. Windsor, as support that Louisiana has the right to define marriage for itself. Feldman writes: “Windsor repeatedly and emphatically reaffirmed the longstanding principle that the authority to regulate the subject of domestic relations belongs to the states, subject to indistinct future constitutional guarantees that in Windsor were, by its expressed limits, left open and rather inexact.”

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