Following the example of Belgium and the Netherlands, Spain has legalized same-sex marriage, according to the Associated Press (via the Washington Post. And Spain did so in the “right” way– through a bill introduced into the parliament, debated upon, and approved by a majority of the members of parliament.
Which is how representative democracies generally work.
Which brings me to same-sex marriage in this country, where the pitched battle is extremely strong, and same-sex marriage advocates have pressed the issues in legislatures and in the courts. Why in the courts? Because, eventually, that is where almost all questions are settled in the American system. A law is passed, a law is challenged as unjust, and a jurist must decide if it’s unconstitutional.
The system has merit; many issues are considered closed once the highest court in the land has spoken. But that doesn’t mean that a court is the first, best place in which to enact such sweeping reforms as same-sex marriage.
The legal argument in favor of same-sex marriage, simplified, is along these lines:
1. Heterosexuals have the right to marry those whom they choose without restriction;
2. Marriage, including the right to marry the person of one’s choosing, is considered a fundamental right; and,
3. The Constitution guarantees equal protection and due process for all, which includes fundamental rights.
4. Therefore, under the Constitution, gays should have the right to marry people of their choosing (i.e. individuals of the same sex.)
I happen to find the above argument persuasive, and a number of judges would find it so persuasive that they would enact same-sex marriage from the bench. Some judges have either done so already, or else indicated their willingness to do so through dissenting opinions.
But that doesn’t mean that the courts are the proper venue in which to enact this social change.
Why do I say this? Abortion and civil rights.
In Roe v. Wade, the Supreme Court decision guaranteed a woman the right to obtain an abortion, subject to government regulation later in the pregnancy. Since the court decided this in the 1970s, the issue has become an irritating boil in the body politic as protesters show up at clinics with their signs, their chants, and their prayers. Meanwhile, legislatures push through regulation after regulation, only to have many of those regulations struck down in court.
In short, there is no real consensus on abortion beyond what the Supreme Court and other judicial bodies have handed down. The issue is frozen in amber, essentially undecideable beyond the trimester rules set in Roe.
Contrast this, with the civil-rights cases of the mid-twentieth century. Brown v. Board of Education (school segregation) and Sweatt v. Painter (law school segregation) reversed the “separate but equal” doctrine of Plessy v. Ferguson only after the NAACP assaulted the “but equal” aspect of “separate but equal,” according to Wikipedia:
The NAACP’s legal department, headed by Charles Hamilton Houston and Thurgood Marshall, undertook a campaign spanning several decades to bring about the reversal of the “separate but equal” doctrine announced by the Supreme Court’s decision in Plessy v. Ferguson. The NAACP’s first cases did not challenge the principle directly, but sought instead to show that the state’s segregated facilities were not, in fact, equal. [Emphasis added]
By the time of Heart of Atlanta Motel, Inc. v. U.S., the issue was no longer “do blacks have the right to this public accommodation,” but “can Congress enact this law.” Note the distinction — by the time of Heart of Atlanta, the general consensus — expressed through the legislature — was that blacks and whites should have equal access to facilities. Even the Constitution-based Loving v. Virginia was decided in part on the general consensus that blacks and whites should be able to engage in “generally accepted conduct” should they choose to marry across race lines.
Which brings us back to the question of same-sex marriage. While one might argue that a consensus has built up around gay rights, the success of anti-same sex marriage measures indicates that there is no general consensus in favor of the expansion of marriage rights to gays. It’s not just, it’s not right … but it is. The consensus in favor of same-sex marriage just isn’t there.
In fact, the consensus against same-sex marriage is so strong that many states have successfully adopted constitutional amendments that bar such unions. Those amendments, unfortunately, are the trump cards in the legal debate over same-sex marriage.
No matter how strong the legal argument, if the general populace is opposed to a measure, then the general populace will make its will known.
I do not argue that gays should abandon the fight for marriage equality. However, the courts are certainly the wrong battleground at this stage. Like the Roe decision, any court ruling that mandates same-sex marriage will meet likely meet resentment and resistance from the population at large. Ungalvanized, that resistance has already translated into state-level anti-gay measures and a strong push for a Federal Marriage Amendment. Galvanized, that resistance could be even stronger.
Before the courts are employed, that resistance must be overcome if the right to same-sex marriage is to be truly secured. This means that the public must be convinced in debates that same-sex marriage does not threaten the institution of opposite-sex marriage. This means that legislatures must be pressed to amend statutes. If the legislatures cannot be pressed, this means that campaigns must be mounted to replace the legislators themselves.
Yes, building consensus through the legislatures is much harder and less dramatic than the convincing a judge to apply his pen. But ultimately, it is the best way to achieve marriage equality without the divisiveness that arose in the wake of Roe.
Pennywit is the chief cook and bottlewasher at Pennywit.com.