Same-Sex Marriage and the Courts

Eve Tushnet has some questions about marriage and the courts.

Assuming that it is a fundamental civil right, then yes, it should be. It is the job of the courts to protect civil rights from the wishes of the majority.

To me, this is the central issue of Goodridge and other court cases regarding SSM – and an issue that SSM opponents don’t seem eager to address. Does equal protection of the laws apply to lesbians and gays, or not? If lesbians and gay men are entitled to equal protection of the law, then same-sex marriage is inevitable.

By pursing constitutional amendments, SSM opponents implicitly admit that federal and state constitutions, as currently written, will lead courts to find that lesbians and gays have an equal right to marry. Same-sex marriage opponents are unable to provide a rational basis for discrimination in court; so they’re trying to alter the various constitutions so that equal protection laws no longer apply to lesbians and gays (at least regarding marriage and civil unions).

The question is too broad for a yes or no answer.

Ideally, the anti-equality state amendments would be kept off ballots because not enough voters support them. Alas, that’s obviously not what’s happening.

Anti-equality amendments should only be struck down by the courts if they are in some way illegal or break state law – for example, an amendment banning both same-sex marriage and civil unions in a state where state law requires ballot measures to deal with only one issue at a time. Those who are against SSM may find this objectionable, but those are the rules we all play under. If a ballot amendment is lawful, however, it should not be struck down.

I do think that many state constitutions should be more difficult to amend; in too many states, civil rights can be struck down by a simple majority vote to amend a state constitution. But those are the rules we all play under. (The good news is, five or ten years down the line those same state constitutions will be easy to amend in support of equality.)

Not in the sense that the split is going to lead to a civil war. Nor would I suggest that marriage equality opponents are as morally vile as slave-owners.

I do think that it’s the equivalent in the sense that a nation “half slave, half free” is a nation that is halfway given over to bigotry. However, I recognize that such a nation is still an improvement over a nation “entirely slave.”

A great deal of the case against same-sex marriage is based on lies and fear of the unknown. SSM opponents have claimed that SSM is associated with banning the bible; that teachers will be forbidden from talking about “mothers and fathers”; that divorce and unwed motherhood will skyrocket; that churches will be legally forced to perform same-sex marriages; that sisters will marry brothers; and a host of other nonsense. (The more intellectual and reasonable SSM opponents don’t usually stoop to these tactics; but the more intellectual and reasonable SSM opponents are not leading the anti-SSM movement).

Fear of the unknown is powerful stuff; and right now, for most Americans, same-sex marriage is an unknown. For that reason, I think it would be a terrible mistake for SSM to be imposed on the whole country by the Supreme Court at this time. While SSM is still a frightening unknown, most of the country will not accept it. There would be a nationwide rebellion against so-called “judicial activism,” and quite possibly a federal anti-gay constitutional amendment.

To avoid this risk, legal SSM should begin with just a few states allowing legal same-sex marriage – and they should be relatively liberal states, in which at least a large minority is already willing to recognize SSM. Five or ten years from now, if nothing goes wrong, same-sex marriage will be a rather dull status quo in Massachusetts, and perhaps in Oregon, Washington, and New Jersey as well. Inevitably, there will be some married gay celebrities, and some TV shows will include flattering portrayals of same-sex marriages. Once SSM has become a boring norm, same-sex couples will have gained “marriage that’s socially as well as legally recognized.” And after that, nationwide recognition will be just a matter of time.