Commentary Magazine


Contentions

The Court, Marriage, and Federal Power

After two days of hearings on cases relating to the legality of measures opposing gay marriage, it is not possible to discern what will happen when the U.S. Supreme Court hands down its rulings. The puzzling and illogical decision on ObamaCare last year should inhibit court watchers from attempting to extrapolate votes from the exchanges between the justices and the attorneys arguing the cases. And given the not inconsiderable number of options that the court has before it when it finally issues rulings about California’s Proposition 8 and the federal Defense of Marriage Act (DOMA), the result could be just as confusing and inconclusive as the arguments that have been aired this week. That makes it as unlikely that the court will act to impose a right to gay marriage on the entire country as it is that it would attempt to prohibit it in those states where legislatures have enshrined it in law as a right.

But if, as gay marriage proponents seem to think, the tide of public opinion has irrevocably shifted on the issue from where it was in 1996 when Congress overwhelmingly passed and Bill Clinton signed DOMA, or even when the voters of California endorsed a constitutional amendment prohibiting state recognition of gay marriage, then it is possible that the court will listen to the polls and do on this issue what it did 40 years ago on abortion with Roe v. Wade. Irrespective of where one comes down on gay marriage, that would not be good for the country.

Let’s first acknowledge that the culture war about homosexuality has been convincingly won by gays. Twenty years ago the already widespread acceptance of openly gay figures in pop culture had not transferred to the political sphere. Indeed, as recently as 2008, a staunch liberal like Barack Obama had to swear his opposition to gay marriage in order to be considered a mainstream political figure. But that is no longer the case. While national attitudes are still far from unanimous, anyone who would argue that the trend toward its acceptance is not accelerating to the point where opponents are becoming a beleaguered minority has not been paying attention. While defenders of traditional marriage can still put forward coherent arguments about the assault on the institution, appeals to the basic libertarian instincts of most Americans are winning the day for the pro-gay marriage point of view. Nor do the claims that gays marrying would materially damage straight marriages seem to have much traction. A political environment in which most people see the issue as one of equal rights for all citizens, as opposed to one about the distortion of the meaning of an institution to suit the whims of a minority, is not one that is sustainable for gay marriage opponents.

That is exactly why the courts can and should defer to the legislative process to sort out this issue.

It may be that the argument put forward that denying gay marriage is a violation of the Constitution’s 14th Amendment equal protection guarantees is accepted by most Americans. If the high court were to unilaterally rewrite the meaning of the Constitution in that way, it might please not only the media and the pop culture world but perhaps a majority of the country. But such a broad stroke would create other problems that are best avoided.

While seemingly harmless, the rush to codify gay marriage as a constitutional right contains within it the possibility of creating a genuine danger of discrimination against religious faiths that oppose the idea. Catholic institutions (already under assault from federal mandates on reproductive issues) as well as Orthodox Jews, the Greek Orthodox and a host of evangelical Protestant denominations could be put in the awkward position of not just being labeled as bigots but as possible law breakers because of their beliefs due to new requirements to recognize and grant benefits due to spouses. If there is to be a right of gay marriage it must be enacted with stipulations that exempt religious institutions as well as clergy from any repercussions from a refusal to go along with the new consensus. That is the sort of sensible compromise that is far more likely to be brought about by the legislative process than a top-down court ruling.

Gay marriage advocates argue in reply that civil rights cannot be subject to the majority vote but rather must be protected by the law regardless of the whims of the mob, as the founding fathers would have understood the issue. They point to the struggle for racial equality in this country in which the courts played a necessary role in both protecting liberty and in prodding the legislatures and public opinion to catch up with what was right. But however much this issue is represented as one that can only be understood as a question of equality, the creation of a new right via the redefinition of an institution is not quite the same thing as righting the wrongs of slavery. The pro-gay marriage side must understand that it is asking the federal government to go into uncharted waters in that respect, as well as by taking this issue away from local institutions that have always governed interactions between the state and married couples.

Change is best achieved when it is accomplished via the democratic process and with respect for the rights of individual states to sort these things out according to the beliefs of its citizens.

If gay marriage advocates are confident, as they probably should be, that time and public opinion are on their side, then they should concentrate their efforts on winning their battle in the legislatures. That is something they have been doing with increasing success in recent years. Were the court to short-circuit that struggle it would set off a new and bitter struggle over the issue that would distort our politics and roil the culture for years and perhaps decades to come.

While the temptation to enact an all-or-nothing proposition in response to the baffling choices before it may entice some of the justices, they should listen to the voices of caution and avoid such a solution. That might mean punting on the California case, in which it can be argued that Prop 8’s supporters don’t have the standing to argue against its invalidation by state courts, as well as by striking down DOMA as a wrongful federal interference with a state matter.

That would disappoint conservatives who hope the court might save the country from the drive to enshrine gay marriage in various states. But in these cases, as in so many other issues, the greater wisdom always rests in restraining the power of the federal government to impose its will on the states and the people. If America is truly “evolving”—as liberals would have it—toward acceptance of gay marriage, then let it do so by the democratic process and not by a court eager to stay ahead of or get out of the way of public opinion.