The Limits of Judicial Power: Why Government Cannot Redefine Pre-Existing Natural Institutions Like Marriage – A Response to Common Objections

Introduction

I am not advocating to stop adults from living as they choose. If someone wants to be gay, lesbian, or transition as an adult, that is their free will. The Bible itself affirms free will. My concern is narrow and constitutional: when “rights” claimed by some are used to redefine foundational realities that predate government, erode the rights of others, or compel affirmation, that crosses a line. Government exists to protect pre-existing rights endowed by the Creator, not to rewrite them.

Marriage is one such pre-political institution: the union of one man and one woman, biologically complementary for procreation and the stable raising of children. It was never created by government, so government cannot legitimately “add to” or redefine it. The same logic applies to binary biological sex and parental rights. Below I state my position on key points, present the strongest rebuttals I have heard, and then respond—particularly addressing the claim that society or law can “evolve” these institutions the way technology evolves.

### 1. Marriage Is Pre-Political and Cannot Be Redefined by Government

My Position

The 14th Amendment protects rights “deeply rooted in this Nation’s history and tradition.” Traditional man-woman marriage was universal long before 1868 and before the Constitution itself. Same-sex marriage had no legal or widespread cultural recognition in U.S. history. The Amendment secures pre-existing realities; it does not create new ones by judicial fiat. Redefining marriage severs it from its natural procreative telos (purpose) and imposes the change on everyone, including dissenters within the LGBTQ community and traditional families.

Common Rebuttal

“Marriage has always evolved. It used to be about property and alliances; now it is about love and companionship. The Constitution is a living document. Substantive due process protects fundamental liberties of dignity and autonomy, as recognized in Obergefell v. Hodges (2015). Excluding same-sex couples was an injustice that courts correctly corrected, just as they corrected interracial marriage bans in Loving v. Virginia (1967). History-and-tradition tests are too rigid—society progresses.”

My Response – Turning the Rebuttal on Its Head

Evolution of social customs (who can inherit, who chooses the spouse) is not the same as redefining the core nature of the institution. Marriage has always been understood as the union of the two complementary halves of humanity—male and female—whose bodies unite toward the possibility of new life. That biological complementarity is a constant, not a custom.

Compare this to your gun analogy: Firearms have evolved from muskets to AR-15s, and the Founders understood technological progress (Gatling guns existed in their era). But human beings have not evolved new reproductive organs. We still have the same binary biology God designed—penises and vaginas, sperm and ova. No one has grown a third sex or a fourth reproductive role. Gravity has not evolved either; neither has the male-female dynamic that produces children.

If “evolution” means we can simply declare that two men or two women now constitute “marriage,” then government is not protecting a pre-existing institution—it is inventing a new one and forcing everyone else to treat the invention as equal to the original. That is not constitutional evolution; it is judicial legislation. The people who ratified the 14th Amendment never understood it to grant courts power to rewrite natural institutions that predate government.

### 2. Dissent Within Groups and the Asymmetry of Rights Expansions

My Position

When rights are expanded nationally from a few cases, dissent—even inside the affected group—is ignored. Many women opposed suffrage because they did not want the burdens. Some gay individuals opposed same-sex marriage, preferring civil unions or fearing assimilation. Yet the change became universal. Traditional parents facing cultural or educational erosion are often told their concerns are too generalized for court relief.

Common Rebuttal

“Rights are universal protections against majority tyranny. Internal dissent does not negate equal protection. The 14th Amendment exists precisely to override democratic majorities when they deny dignity or equality. Your claimed ‘erosion’ is speculative cultural discomfort, not concrete injury.”

My Response

Universal rights should not require silencing voices within the very group supposedly being helped. More importantly, the asymmetry reveals the problem: localized same-sex couples received nationwide redefinition, but parents who see their foundational parental rights and natural family norms undermined must prove imminent personal harm before courts will listen. That double standard treats one side’s dignity as paramount and the other’s as secondary. Prevention—protecting the natural order before it collapses—is not speculation; it is prudent stewardship of what predates the state.

### 3. Slippery Slope, Decadence, and Societal Consequences

My Position

History shows societies flourish under strict monogamous, procreative norms and decline when those norms loosen (J.D. Unwin’s study of 86 societies; late Rome). Modern indicators—fertility rates at 1.6, record-low marriage rates—echo those patterns. Redefining marriage detaches it from child-centered stability.

Common Rebuttal

“Slippery-slope claims are fallacious. Same-sex marriage is distinguishable from polygamy or incest by mutual consent and equality. Unwin’s work is outdated and methodologically flawed—correlation is not causation. Low fertility today results from economics and women’s choices, not marriage equality. No wave of polygamy followed Obergefell.”

My Response

Even if causation is complex, the correlation across civilizations is striking and should give pause. Unwin’s data may have limits, but dismissing patterns of decline because they are uncomfortable does not make them disappear. The deeper point remains: when law detaches marriage from its natural procreative purpose, it normalizes the idea that adult desires alone define family. That shift has downstream effects on children and societal stability—effects that cannot be wished away by calling the concern a “fallacy.”

### 4. Parental Rights, Schools, and Preventive Injury

My Position

Public schools are created by and for the people. They cannot override the natural biological consensus that man and woman create children. Parents have the primary right to direct their children’s upbringing, including shielding them from ideologies that treat binary sex as optional. Homeschooling to avoid secret transitions or compelled affirmation is not mere preference—it is injury caused by state policies that undermine parental authority.

Common Rebuttal

“Schools must balance child safety and anti-discrimination. Trans youth face elevated suicide risk if unsupported. Parental rights are not absolute; the state may protect vulnerable students from unsupportive homes. Recent rulings like Mirabelli v. Bonta (March 2, 2026) are narrow procedural orders, not broad endorsements of your view.”

My Response

Mirabelli (6-3 per curiam) explicitly recognized that parents are likely to succeed on Free Exercise and Due Process claims when schools withhold information about gender transitions. The Court treated parental rights as substantial, not secondary. The broader principle holds: schools derive legitimacy from the people they educate. When they teach or enforce views that contradict observable biology and widespread parental consensus, they exceed their mandate. Prevention is not paranoia—it is the same logic that justifies insurance, stand-your-ground laws, or any forward-looking protection of fundamental rights.

### 5. Abortion and Recognition of the Unborn as Human

My Position

Legal recognition of the unborn as human beings with interests (seen in wrongful-death statutes, tort law, and even citizenship discussions) logically places elective abortion on shaky ground. If the law treats the unborn as a developing human, it cannot simultaneously treat that life as disposable at will.

Common Rebuttal

“Dobbs (2022) returned abortion to the states without creating fetal constitutional personhood. Wong Kim Ark addressed post-birth citizenship. Balancing fetal life against bodily autonomy remains a legislative question.”

My Response

Dobbs removed the nationwide constitutional right but did not settle the underlying moral and logical question of when human life deserves protection. If the law already recognizes the unborn in multiple contexts as a human being with interests, consistency demands that elective abortion—which ends that life—be addressed through democratic processes with the presumption of protection for the vulnerable, not automatic permission.

### Conclusion: Constants vs. Variables

The gun analogy illustrates the distinction opponents often miss. Weapons have progressed dramatically, and the Founders understood technological evolution. But human beings have not grown new reproductive systems. We still possess the same binary biology—male and female—that has existed since humanity began. Marriage, grounded in that constant complementarity, is not a variable that government or courts may freely rewrite.

Calling for return of marriage definition to the states and the people is not bigotry. It is fidelity to the constitutional order: government protects what predates it; it does not invent or compel contrary beliefs. Adults retain full personal liberty in their private lives. What cannot be accepted is the use of state power to erode the natural foundations that secure rights for everyone—including children and future generations.