In the Pipeline: Gay Marriage

The purpose of this entry is not necessarily to get into the morality of gay marriage or homosexuality. As people are aware, due to a decision of the California courts, gay marriage was “approved” in California. However, opponents soon got Proposition 8 on the ballot and it passed which essentially overruled the courts and negated gay marriage. However, gay activists in the state then challenged the constitutionality of the referendum and the courts negated its results. Pending appeals, however, gay marriage is still not a reality in California.

I do not believe this case will ever see the light of day before the US Supreme Court. In 1972, the Court rejected a similar case out of Minnesota involving alleged disparate impacts against a same-sex couple. The reason was that it lacked a “substantial federal question.” Since the case came to the Court on mandatory appeal, the dismissal was based on the merits. In effect, it leaves the definition of marriage to the states until such time the Court declares that the definition of marriage will be decided otherwise. Regardless, as it stands now, the definition of marriage being defined by the states is the law of the land. Troubling in all this is the fact that the California Attorney General along with the US Attorney General (in the case of DOMA) have decided not to defend democratically decided ballot initiatives or legislative decisions out of personal, not legal, beliefs. In essence, both offices are bucking the proven will of the people. DOMA passed 85-14 in the Senate and 342-67 in the House, rather overwhelming majorities proving the will of the people. If sensibilities, attitudes, and views regarding gay marriage, or marriage in general, has changed so dramatically since 1996, then the best solution is to debate and then act upon changes to DOMA or state laws. That is NOT what happened and, it can be argued, is proof that activist courts are foisting a liberal policy upon the public.

Also, in his decision, Judge Walker in California, who originally overruled Proposition 8, acknowledged that the new definition he was affording marriage was not rooted in our history and traditions. Using his own words, he comes to an opposite conclusion. He should have ruled that since gay marriage is not rooted in our history and traditions, it should not be afforded special constitutional protections. Because same-sex marriage was never a reality, there is no fundamental right to marriage other than for the biological one that has been traditionally recognized, namely procreation.

Unlike the campaign finance reform law case coming out of Montana or the Fisher affirmative action case out of Texas, it would be very surprising if the Court accepted the Proposition 8 case out of California. The key here is Justice Ginsburg and some of her recent comments regarding an unrelated, but equally controversial case- Roe v. Wade. She noted, accurately, that the Court’s decision in 1972 actually ushered in the tenacity of the pro-life movement not as a reaction against abortion necessarily, but it gave the conservatives a powerful argument against judicial activism. She noted that the number of states with criminal sanctions against abortion were dwindling every year by the time Roe was decided. Left out of the conversation was the fact that the Court had to reach at constitutional straws to carve out an amorphous right to privacy which led to talk about “penumbras” and such. Likewise with gay marriage, the Court may be wading into a similarly highly charged subject that will create a backlash against the Court. She correctly noted that the definition of marriage is changing state by state on a piecemeal basis and that the perhaps the best route for gay activists is to proceed at the state level, much like pro-choice activists were succeeding at the state level leading up to 1972. She, like other members of the Court, are not immune to the polls that show a majority of Americans are now not against the concept of gay marriage, or at least civil unions. The best solution would be to make the case through state legislatures since laws, not judicial dictates, hold greater weight. Should the Court wade into this area, through the courts, a de facto national marriage law would evolve, much like a national abortion law evolved after Roe.

There are side issues involved with Proposition 8. First, since the state, trough their Attorney General, refuses to defend the proposition, there is the question of standing. In effect, who represents the state’s people in this case? The decision by the Attorney General not to defend the law in court creates a subtle legal conundrum when it comes to the Supreme Court. Secondly, there is the issue of federalism and state’s rights. Obviously, the Supreme Court can wade into this area when a state law violates the Constitution. For example, a state cannot pass a law which permits slavery as it would clearly run afoul of the 13th Amendment. Likewise, but differently, should the Court enter an area that has been the exclusive province of the states- the definition of marriage and, more broadly, domestic relations?

In the past, I have written on these and other pages about gay marriage. I have researched the subject and developed a “so what” attitude. Gay marriage does not affect me personally. I have no financial stake in it; it does not affect my wallet. It may offend my sensibilities, but I find no broad societal harm besides an offense against sensibilities. I find it strange that among opposite-sex partners, marriages are falling apart as less and less people treat it in high regard yet gays are fighting for that right to marry. Anything that would decrease the definitely proven sexual promiscuity of gays, and the spread of sexually transmitted disease, should be considered. Additionally, I know gay couples who have adopted children and some heterosexual couples could use them as an example of how to correctly raise children in a loving, caring and productive home. Regardless, it is up to the elected officials or the people directly through referendum to place the stamp of approval on same-sex marriage. And since marriage has traditionally been the exclusive province of the states, changes need to occur exclusively there. The Equal Protection arguments are weakened by the very decision of Judge Walker and by the words of the Ninth Circuit Court of Appeals when they admitted that a “right” to same sex marriage is not rooted in our history and traditions and, thus, not necessarily worthy of constitutional protection under the Equal Protection clause.

One final thought: many in the gay activist community equate this battle with civil rights and, specifically, the Court’s decision in Loving vs. Virginia which ruled that bans on interracial marriages were unconstitutional. The difference is that Loving involved heterosexual marriage where there is a history and tradition and, therefore, constitutional issues at stake. Using Loving, they stand on shaky constitutional ground. Instead, they need to prove, on a state by state basis, their rationale for same-sex marriage and let the legislative chips fall where they may.