Both courts erred seriously on the merits. The Brown decision departs from both constitutional history and deeply rooted social mores. Nothing in the Constitution (not its text or history or precedents) forbids states to ban adulterous cohabitation.
Laws prohibiting adultery are deeply rooted not only in American legal and moral tapestry but in the legal and social fabric of most civilized societies. Sexual fidelity to one's spouse is a core, basic element of marriage, and has been for millennia, not merely in American law but in virtually all cultures and societies in the world.
While those values at times have been honored in the breach rather than the observance, they have persisted as deeply important principles of not just family and social organization but as foundational constitutional values. The form part of the moral substructure upon with our constitutional superstructure is based.
Likewise, marriage has required the union of man and woman for millennia. In fact, it is only in the past 15 years (and only in a handful of jurisdictions) that marriage has been redefined to allow same-sex marriage. Today, only 16 of 193 sovereign nations (8 percent) have legalized same-sex marriage it is forbidden and legally rejected in nearly 92 percent of the nations of the world.
There is an important reason why gender-integration has been a core component of marriage in all societies across all time. It lays the foundation for the equality of both genders and for equal respect for the contributions of both genders throughout society. It protects and reinforces the mother-father family, which is the basic social institution.
When marriages are disregarded and trivialized by public officials, as by the judges in the Brown and Kitchen rulings, that weakens the institution of marriage and subverts the integrity of the relationship of marriage.
Societies in which marriage is weakened and trivialized suffer severe consequences. History shows that the dependent, the young, the weak, and the aged pay a heavy price when marriage is weakened.
Both judges and both of their rulings abandoned judicial self-restraint. That is why the rulings are illegitimate. An important part of the role of judges is to respect the authority and responsibilities of other branches and institutions of government to adopt policies with which they personally may not agree. These rulings violate the separation of powers a core constitutional principle.
That some federal judges might have personal views about "modernizing" Utah's marriage law to embrace novel forms of marriage and diminish the meaning of marriage is not surprising. However, that they would abuse the power of their office to rewrite Utah's marriage laws to impose those views upon the people of this state is wrong and deeply troubling.
It is truly unfortunate that the judges in these two cases forgot basic principles on which our constitutional system is predicated. Those principles include not only respect for gender-integrating marriage but also for judicial self-restraint.
In both cases, the courts displayed a remarkable disrespect for the institution of marriage. Both judges severely abused judicial power. Because marriage matters, state and county officials should vigorously and effectively appeal the unjustified and illegitimate federal court rulings in Brown and Kitchen.
Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University, managing editor of the International Journal of the Jurisprudence of the Family, and past president of the International Society of Family Law.