I don’t always agree with Jonathan Rauch, but I always respect the quality and rigor of his arguments. His op-ed in the New York Daily News, on the topic of U.S. District Judge Vaughn Walker’s decision that California’s ban on same-sex marriage violates the U.S. Constitution, is no exception.
I find Rauch to be the most formidable and persuasive voice for same-sex marriage. But he makes a persuasive Madisonian and Burkean case against the decision. In Jon’s word:
Now, I agree with Walker that gay marriage is unlikely to cause any significant social harm and will do much good. But the judge insists that the testimony of a handful of expert witnesses in his courtroom rules out the possibility of harm so definitively as to make any attempt at caution or gradualism irrational. The evidence, he holds, is “beyond debate.” In an unpredictable world, that kind of sweeping certainty would leave any Burkean gulping.
So I think the decision is a radical one, but not, ironically, as it pertains to homosexuality or to marriage. No, Walker’s radicalism lies elsewhere: In his use of the Constitution to batter the principles of its two greatest exponents – Madison and Abraham Lincoln, a Burkean who was steadfast in his belief that ideals must be leavened with pragmatism.
History will, I believe, vindicate Walker’s view of marriage. Whether it will see him as having done gay rights a favor is less clear. For all its morally admirable qualities, his decision sets the cause of marriage equality crosswise with moderation, gradualism and popular sovereignty. Which, in America, is a dangerous place to be.
These are impressive arguments by an impressive, intellectually honest mind. It’s safe to say as well that our political discourse would be much better if it were more Rauchian.