A reader alerted me to a strange piece on David Frum’s site in which Jeb Golilnkin said that the GOP will thank conservative lawyer Ted Olson for, together with liberal attorney David Boies, appealing “the constitutionality of California’s ban on gay marriage“:
If they were to succeed in showing the California ban to be what it is, an unconstitutional law that is, in Olson’s words, “utterly without justification” and that brands gays and lesbians as “second-class and unworthy” in the eyes of the law, Republicans will owe the two a debt of gratitude for saving the party from twenty years of supporting a position that 20 years from now men and women will view as utterly abominable.
Um, not so fast, Jeb. Before you instruct our fellow Republicans on being “on the wrong side of history” (while borrowing a liberal talking point to say as much), take heed to the results of a little 1973 Supreme Court decisions, Roe v. Wade. There, the court removed the issue of abortion from elected legislatures and overturned their bans on the practice. And as a result, for the past thirty-six years, abortion has become a divisive social issue.
And back then, some states were already moving to legalize the practice (just as some are moving today to recognize gay marriage). If federal courts mandate state recognition of gay marriage, gay marriage will become a political football like abortion, forever dividing us. Mr. Frum should recall that gay marriage first became a political football in the 1990s shortly after the Hawai’i Supreme Court ruled that its state “statute limiting marriage to opposite-sex couples is presumed to be unconstitutional“, remanding the case to lower courts to see if there were compelling “state interests” which justified the ban. Three years later, a trial court found that there were none.
The same year, Congress enacted the Defense of Marriage Act (DOMA). Two years after that, Hawai’i voters amended their state’s constitution to limit marriage to opposite sex couples. A raft of state referenda with goals similar to the Aloha State initiative followed. In this century, the Goodridge decision in Massachusetts mandating that the Bay State legislature recognize same-sex marriages led to a similar flood of state initiatives limiting state recognized marriage to its traditional definition.
In short, court-mandated recognition of same-sex marriage only serves to further social divisions. To avoid such divisions, gay marriage advocates should first convince the people of the merits of expanding the definition of marriage to include same-sex couples. That is why it is better to move this issue through legislatures. And given last month’s election returns, it would be better to move incrementally, first pushing civil unions for which there seems to be significant support (at least in the nation’s coastal regions).
It is not in the GOP’s interest to see federal courts resolve the gay marriage issue. Nor is it in the national interest, that is, unless you believe it’s a good idea to make gay marriage an even more divisive issue than it already (and unfortunately) is.
*NB: I changed the post to reflect the fact that while it appeared on David Frum’s site, it was penned by Jeb Golinkin
FROM THE COMMENTS: Throbert corrects me on a point about the Aloha State legislation:
Well, technically — bless their hula-dancing hearts — what they actually did was to amend the constitution more or less like so:
“The gender-equality clause of our state constitution notwithstanding, the Hawaiian legislature shall have the authority to define ‘marriage’ under state law.”
And then the legislature used this newly-specified authority to limit marriage to opposite-sex couples.
I don’t think it’s a merely pedantic point, since every other state that has amended its constitution over the SSM issue has gone the route of explicitly adding “one man, one woman” to the constitution, while Hawaii avoided doing that. (Which means that if public opinion in Hawaii shifts in favor of SSM, they can simply enact it through the legislature without having to first repeal any “one man, one woman” amendment.)