It's not just another contractual agreement

Ryan T. Anderson at the Heritage Foundation looks at Judge Paul Niemeyer's dissent in the decision by the 4th Circuit Court of Appeals that defining marriage as a one man - one woman union violates teh 14th Amendment:

Niemeyer argues that the court “explicitly bypasses the relevant constitutional analysis required.” What would the right constitutional analysis look like? Niemeyer explains:

This analysis is fundamentally flawed because it fails to take into account that the “marriage” that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly proposed relationship of a “same-sex marriage.” And this failure is even more pronounced by the majority’s acknowledgment that same-sex marriage is a new notion that has not been recognized “for most of our country’s history.” Moreover, the majority fails to explain how this new notion became incorporated into the traditional definition of marriage except by linguistic manipulation. Thus, the majority never asks the question necessary to finding a fundamental right—whether same-sex marriage is a right that is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed.”

Niemeyer is particularly helpful in seeing why the analogy to interracial marriage fails. He explains that in Loving v Virginia, the case that ended bans on interracial marriage, the couple was “asserting a right to enter into a traditional marriage of the type that has always been recognized since the beginning of the Nation—a union between one man and one woman.”

Anderson says that the Supreme Court has made previous assumptions about the nature of marriage that need to be brought into any current considerations:

Niemeyer explains that there are good policy reasons for citizens to refrain from redefining marriage: “Only the union of a man and a woman has the capacity to produce children and thus to carry on the species. And more importantly, only such a union creates a biological family unit that also gives rise to a traditionally stable political unit.”
Indeed, “when the Supreme Court has recognized, through the years, that the right to marry is a fundamental right, it has emphasized the procreative and social ordering aspects of traditional marriage.” He went further, arguing that “the marriage of a man and a woman thus rationally promotes a correlation between biological order and political order.”
But whatever any individual American thinks about marriage, the courts shouldn’t redefine it. Marriage policy should be worked out through the democratic process, not dictated by unelected judges. The courts should uphold the freedom of the American people and their elected representatives to make marriage policy.

Niemeyer gets the issue exactly right: “The U.S. Constitution does not, in my judgment, restrict the States’ policy choices on this issue. If given the choice, some States will surely recognize same-sex marriage and some will surely not. But that is, to be sure, the beauty of federalism.” The courts should not force states to abandon caution in the face of a social experiment like the redefinition of marriage.

Indeed.  How about if we have this debate in a decentralized, legislatively driven manner and leave the robes out of it?