What the federal court decision in favor of same-sex marriage
will do for gay couples and their children is heartening and
welcome. What it will do for our law and politics?well, that's a
different story, and a dismal one.
If I favored a constitutional amendment banning gay marriage, I
would have considered Wednesday a very good day. When a judge in
California found that same-sex couples have a right to wed, he
cemented the widespread notion that the courts are out of control
and that the Constitution means whatever judges want it to mean.
The verdict will go far to energize and expand opposition to gay
rights, at a time when they were on the rise.
Let me be clear: Had I been a Californian, I would have voted
against Proposition 8, which banned gay marriage. I would like all
50 states and the federal government to grant same-sex couples
access to marriage. But it would be far better for that change to
come from elected institutions than from the courts.
U.S. District Judge Vaughn Walker struck down Proposition 8
because it "fails to advance any rational basis for singling out
gay men and lesbians for denial of a marriage license." But it's
silly to believe only nut jobs and bigots could rationally oppose
same-sex marriage, or that millions of Californians who accept
other laws protecting gays were acting irrationally.
They might reasonably fear that in some subtle way, the
legalization of gay marriage may gradually weaken the appeal of
marriage among heterosexuals. They might think it will modestly
increase out-of-wedlock childbearing. They might believe our
understanding of the possible repercussions is so limited that we
shouldn't tinker with an age-old institution in this way.
Are those concerns persuasive? Not to me. But they are plausible
enough to contradict Walker's assertion that the only real
justification for the ban is "the notion that opposite-sex couples
are superior to same-sex couples."
Most people and judges agree that the Constitution doesn't allow
the government to outlaw interracial marriage. Most would also say
the Constitution does allow the government to outlaw
polygamous marriage. Those who applaud this ruling should ask
themselves: Would they feel the same way if the court had ruled in
favor of polygamy?
The same arguments, after all, apply in both realms. The judge
said authorizing same-sex marriage would further social goals like
fostering stable relationships, protecting children, and allowing
adults to follow their natural sexual desires. Ditto for permitting
polygamy.
The ban prevents the polygamous from marrying their chosen
partners just as the prohibition of same-sex marriage deprives gays
of that freedom. Josh can't marry Zack; Michael can't marry Katie
and Nicole. If the right to marry encompasses the former, why not
the latter?
Gays argue, correctly, that they can't be expected to change
their inborn sexual orientation to get married. But polygamists can
assert that monogamy is impossible for them?and, judging from the
prevalence of sexual infidelity, for most people.
Nor does the polygamy ban solve any problems. Men can already
have sex with multiple females, produce offspring with them, and
furnish them with financial support. Former NFL running back Travis
Henry has nine children by nine different women.
Prohibiting polygamy does nothing to prevent such conduct. It
just keeps people who want to do it responsibly from operating
within an established legal framework.
That's why I would legalize polygamy as well as same-sex
marriage. But it's one thing to believe those changes would make
sound policy and entirely another to think that the Constitution
requires either?especially when California, which passed
Proposition 8, has granted gay couples access to most of the rights
afforded by marriage.
The decision may very well lead the Supreme Court to rule in
favor of same-sex marriage. If so, it would be the most polarizing
decision since Roe v. Wade in 1973, which we are still
fighting about.
It would spark a furious backlash from Americans who, whatever
their views about homosexuality, think such decisions belong with
them and their elected representatives. It could even lead to a
constitutional amendment overturning the decision.
Thanks to Judge Walker, the debate is no longer about whether
gays deserve protection from the law, a debate they were steadily
winning. It is more about whether democratic processes should be
trusted to resolve the question. That's a debate they are likely to
lose.
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