Our host, of course, is a leading champion of gay marriage. Indeed, reading his work on the subject, has persuaded me the law ought to recognize some form of committed partnerships between same-sex couples. Whether you call it a civil union or marriage is a matter of indifference to me, although it seems obvious that a decent respect for the opinions of others and the freedom of religion mandates that the union have solely civil implications. One would hope that as gay marriage comes to be accepted, for example, that civil rights and anti-discrimination laws could not be used to sue priests who refuse to perform religious marriage ceremonies for same-sex couples.
Where Andrew and I may differ strongly, however, is whether this is an appropriate question for courts.
Judicial resolution of hot button cultural issues has all too often contributed to polarization and social division.
Consider the case of abortion rights. Former Democratic Congressman, Clinton Administration White House Counsel and federal judge Abner Mikva once explained that: “I support the result of Roe v. Wade. … But … in retrospect, I wish the court had stayed its hand and allowed the political process to continue, because we would have legislated the effect of Roe v. Wade in most states not all of them, but in most states and we wouldn’t have had to pay the political price we’ve had to pay for it being a court decision. The people who are angry at that court are angry beyond measure. As far as they are concerned the whole system is rotten because they’ve lost their opportunity to slug it out.”
Justice Ruth Bader Ginsburg has likewise stated that “Roe v. Wade ... halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”
Because it is custom, tradition, and long familiar patterns that enable people to live together peaceably, social change needs to come slowly. Change and progress are necessary, of course, but sudden change disrupts social bonds, induces stress and engenders controversy as old and vested interests are upset.
Sudden change by a cabal of unelected and largely unaccountable judges is particularly likely to engender controversy. Again, I’ll let Judge Mikva explain: “I don’t think it’s an accident that our founders put the legislative branch in the first article of the Constitution. The reason is that they perceived it to be the first among equals. Most of the people who’d been in Philadelphia had been members of the colonial legislatures, had been members of the Continental Congress, of the early congresses, and they understood the legislative process. They knew how it worked, and they recognized that there was a direct tie between where the people were and where the legislative branch was. They … were nervous about the judges because the English judges had not been an unmixed blessing as far as the colonies were concerned.”
The founders knew, like Spiderman, that “with great power comes great responsibility.” They ensured that Congress and the President could be held to account. If you don’t like what Congress is doing, you can vote for legislators you like better. You can contribute to candidates all over the country who share your views (of course, your ability to do so is limited because our judges have decided that political campaign contributions deserve less First Amendment protection than, say, child porn). You can give to 527 organizations that will promote your agenda. And so on.
Unfortunately, perhaps because they could not envision the extent to which modern judges would assert control over virtually all aspects of society and culture, the Founders failed to provide adequate accountability mechanisms. If you don’t like what the Supreme Court does, tough. All you can hope is that you can elect leaders who will eventually replace enough of those nine unelected old men and women with individuals whose views are more to your liking.
Abraham Lincoln saw the problem coming. He said of the Supreme Court’s Dred Scott decision that: “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” And so it is today.
We must hope that judges can tell the difference between cases where intervention is necessary and appropriate and cases that should remain in the political arena. The New York Court of Appeals in 2006 argued that gay marriage fell into the latter category:“We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. … Whether such marriages should be recognized is a question to be addressed by the Legislature,” the court said. Now if only we could get those nine oldsters in Washington to emulate their northern counterparts.
I have no doubt that some form of gay marriage is coming. And that will, I think, on balance be a good thing. But the way in which it arrives matters a lot. One hopes that even ardent supporters of gay marriage recognize that the decades of Kulturkampf that followed - and still follow - Roe v. Wade is not something that ought to be repeated.
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