The Purple State | Approaching the same-sex marriage question

Larry Friedman Guest Writer

I believe that prohibiting homosexuals from marrying one another is a violation of the equal protection clause of the 14th amendment to the U.S. Constitution which guarantees equal treatment to everyone in America. In other words, like many liberals, I view the prohibition of same-sex marriage as a violation of the civil rights of homosexuals. Consequently, I have problems with the proposed federalist solution of letting the states decide the gay marriage issue for themselves, since states do not have the right to violate civil rights of their citizens. “Letting the people decide” is a dangerous principle to abide by when issues of rights are at stake. To do so would be what John Stuart Mill termed “the tyranny of the majority,” which our constitution is designed to prevent. The logical outcome of this line of thinking is to support state Supreme Court rulings, such as the recent New Jersey decision, that tell the legislature that they must expand marriage rights to homosexual couples, will of the people be damned.

I discussed my feelings about the marriage issue with a friend (and fellow Vassar student) the other night, and he was sympathetic to my arguments, but raised an important objection: Judicial imposition of marriage rights, as opposed to legislative support for marriage rights, will cause instability in our democracy. It is not gay marriage itself that will cause this instability, but rather the fact that many people in states where these Supreme Court rulings are made will feel that a new definition of marriage has been forced on them by unelected officials. This will weaken trust in the judicial branch, thereby weakening the force of their further rulings (for they do not have the power to enforce their own decisions), and will increase the already high level of cynicism people have about their ability to affect change in our democracy. Furthermore, the decisions are likely to energize the far-right, which has has been the case in recent years.

Despite the histrionic pronouncements of the far-right that gay marriage (no matter how it is brought about) is a threat to our entire social order, tolerance for homosexuality in America has gone up in recent times. As people increasingly see the struggle for homosexual marriage rights as our generation’s civil rights struggle, on par with racial politics in the 1950s and 1960s, popular support for gay marriage will only gain more support. Staunch conservative Bill Bennett admitted on The Daily Show that this is an irreversible trend and that supporters of gay marriage have, in effect, already won the debate. Perhaps this should encourage liberals like myself to refrain from supporting judicial imposition of marriage rights and instead to sit comfortably with the knowledge that if current trends continue, marriage rights will be eventually achieved by popular will via state legislatures.

There are many things that I like about this more conservative solution to the gay marriage issue, but at the same time, the liberal in me finds it repugnant to allow for the denial of marriage rights to homosexuals until the majority of society comes to their senses and grants them those rights themselves. In the end, I find myself stuck between the judicial approach and the more pragmatic, legislative approach. Ultimately, I think that the instability and hostility likely to be engendered by judicial decisions must be weighed against the inherent unfairness of the more conservative approach.

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