Save the Celebrations For Later

Before the high fives and back-slapping celebrations begin over the California Supreme Court’s decision upholding Proposition 8, a little dose of reality is in order.  While the ink was barely dry on the decision, there is already an appeal of that decision in the federal courts.  Considering it would most likely eventually end up in the left of liberal Ninth Circuit Court of Appeals, the final word on this matter in the most populous state is not over.  Also, consider there is a concurrent effort at a ballot initiative to reverse Proposition 8.  To their credit, many in the gay activist community have voiced their disapproval of this headline-grabbing Federal case fearing it may eventually end up in the US Supreme Court where gains made by LGBT groups in other states may be dealt a crushing blow.

Currently, five states representing 4.9% of the US population allow same sex marriage.  Another 19.8% of the population resides in states that recognize civil unions.  Most importantly, greater than half the states representing roughly half the US population have statutes or constitutional amendments which specifically disallow same sex marriages, or that define marriage between opposite sex partners exclusively.

Let’s dispense with the libertarian argument that marriage is a private act and the State has no business saying who can and cannot marry.  It ceases to be private once those entering into the marriage contract seek state recognition in order to receive the legal benefits and priveleges of marriage.  Of course, States do not have carte blanche to intrude into the minute details of marriage, but they can certainly establish the parameters of the definition of marriage.  For example, the argument that gay partners should be allowed to marry, if carried through on these libertarian grounds, would allow for incestuous marriages and polygamy also, yet there is no groundswell of support for these practices.  Proponents of same sex marriage point out that it is the moral equivalent of anti-miscegenation laws which were struck down as unconstitutional in 1969.  The fundamental difference is that those laws addressed opposite sex marriages between members of different races and there was a clear racial animus in enacting those laws in the first place.  The controlling decision- Loving vs. Virginia- did not even entertain the notion of same sex marriage, nor did it define marriage- it assumed the traditional marriage.  Current state laws which define opposite sex marriage have no sexual-orientation animus per se, unlike the anti-miscegenation laws.  The reason for defining marriages as between opposite sex has to meet a compelling State interest and the courts have ruled in that area, although there is a problem (explained soon).

Some argue against the State-by-State, “majority rules” approach in that it creates a patchwork of laws and the majority may be objectively wrong either way.  As for the partchwork, is there not a patchwork hunting laws or driver’s licensing laws and the country has not fallen apart?   The deciding case is  Pennoyer vs. Neff from 1877 when the Court stated rather specifically: “The State has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.”  The wording cannot be any more explicit that the power to define marriage lies with the States.  And the summary dismissal of Equal Protection arguments as “no substantive Federal question” in Baker vs. Nelson has withstood several legal court challenges.  It should be noted that the Baker case was dismissed in 1972 by the very same Supreme Court that brought us Roe vs. Wade, hardly a conservative-packed Court.  Simply put, marriage and the rules defining marriage, are a State issue.  That being said, recent polls indicate that a majority of Americans do not approve of same sex marriage.  However, when you break it down by age, the younger age groups are more accepting of gay marriage.  Assuming this group’s attitudes do not change as they grow older, they will be the decision-makers of the future at the ballot box.  When that happens, then the definitions can be changed.  Ruth Bader Ginsberg- certainly no conservative- while discussing Roe vs. Wade, said she believes the decision had a chilling effect on a general trend towards liberalization of abortion laws when it was decided.  She theorized that given time, we would have arrived at the point we are today without the courts being involved and without the controversy and polarization of the debate because the issue was decided by legislatures, not forced  on anyone by the courts.  Gay activists would be well-advised to heed the words of Justice Ginsberg.

On the Federal level, there are over 1,100 references to marital status in Federal laws and regulations.  Unfortunately (or fortunately), the federal Constitution does not provide for referendums on issues per se except indirectly through the election of officials, or more directly through the amendment process.  One potential problem is the “full Faith and Credit” clause of the Constitution where the laws of one state are recognized and respected by another state.  That is what allows you to get a driver’s license in one state and drive in another state without getting a driver’s license for that state.  In the case of gay marriage, the Federal government addressed the issue through the Defense of Marriage Act (DOMA) in 1996 which establishes the traditional heterosexual definition of marriage for federal purposes, but allows states to recognize same sex marriages.  However, one state need not recognize same sex marriages from another state unless they opt to do so.  As an issue of federalism, Congress has that explicit right to grant exceptions to the full faith and credit clause under its Article 4, Section 1 powers.  Incidentally, there was clear bipartisan support for DOMA as it passed the House 342-67 and the Senate 85-14.  Therefore, LGBT activists might better use their resources to lobby Congress to reverse DOMA as they have that power.  If the alleged violations of Equal Protection and Due Process are so great and so urgent, then surely Congress could address this issue more resoundingly than any court.

A potential problem exists with the opposite sex marriage definition and statutes.  States are permitted to define the parameters of marriage because of the unique position marriage assumes in society.  This is based upon the compelling State interest of promoting marriage as a means to facilitate the family unit and procreation.  Because procreation is involved, it necessarily must include a man and a woman.  However, compare this to changing mores and attitudes towards racial segregation and the accompanying psychological and sociological studies.  For more than half a century, the concept of “separate but equal” defined the legal argument expressed in Plessy vs. Ferguson.    But, with these psychological and sociological studies which demonstrated the inequalities in educational opportunity of “separate but equal,” the Court in Brown vs. Board of Education over-ruled that decision and concept.  If you don’t think it can happen, then one should read the Brown decision., especially the footnotes, to show how these studies shaped constitutional law.  Obviously, activists will produce studies to undercut the underlying premise of the traditional reason for marriage.  This compelling state interest- the well-being of children- is a shaky foundation for a house of cards.  Strengthening that base by demonstrating and proving that children in same-sex parent households would be at a disadvantage is necessary.  The jury is still out in this area because same-sex marriage is a relatively recent development and children of these marriages are the exception, not the norm.  So not only is there a small, unreliable sample size, but there is a lack of longevity to accuractely gauge the effects through detailed lingitudinal study.  Furthermore, in today’s world, there are innumerable children of single-parent homes given divorce rates or just a shunning of marriage.  Isn’t it ironic that heterosexuals are turning their backs on marriage while homosexuals are fighting to marry?  Something clearly went wrong somewhere.

At the very least, this issue should be debated rationally in the public forum and the people should decide the outcome of the debate.  The mere fact that 56% of Americans oppose gay marriage is illuminating because the numbers were higher not too long ago.  There will always be pockets of resistance, just as there were pockets of resistance to civil rights laws in the 1960s (although I do not equate the two).  Also, just as civil rights laws cannot make a white person hold hands with a black person and sing “Kumbaya,” neither will gay marriage laws have heterosexuals holding hands with homosexuals singing “I Will Survive” and increasing the sale of Judy Garland records.  However, this may very well be an issue that the Republican Party may find itself in the minority.  Would it be better to jump in front of the debate and let the people decide through their elected officials, or amendment?  Or does the Party stand on principle in defense of traditional family values and the traditional definition of marriage?  At a minimum, allowing the people to decide while educating them about the legitimate state concerns would be the preferred path.  But after that debate, if the people choose against one’s views, then the will of the people must be respected.  And if that will allow for same-sex marriage, then the victory of the LGBT community carries greater moral weight than that which would come through a court decision.  Conversely, if the will is against same-sex marriage, then the LGBT community must also respect that decision without ridicule.