There are a great variety of reasons why I believe legislatures, not courts, should resolve the issue of state recognition of gay marriage. In a must-read piece in Reason, Steve Chapman addresses a number of those reasons, including this one:
If I favored a constitutional amendment banning gay marriage, I would have considered Wednesday a very good day. When a judge in California found that same-sex couples have a right to wed, he cemented the widespread notion that the courts are out of control and that the Constitution means whatever judges want it to mean. The verdict will go far to energize and expand opposition to gay rights, at a time when they were on the rise.
He well articulates my fears. In speculating further that the Supreme Court might “rule in favor of same-sex marriage”, Chapman contends “it would be the most polarizing decision since Roe v. Wade in 1973, which we are still fighting about”
It would spark a furious backlash from Americans who, whatever their views about homosexuality, think such decisions belong with them and their elected representatives. It could even lead to a constitutional amendment overturning the decision.
A Supreme Court attempt to resolve the issue will do anything but. And could further polarize the nation on gay issues.
That said, in commenting on Chapman’s piece, Jeff Goldstein writes (emphasis in original):
I suspect that most of those who oppose same-sex marriage on some ground or other would be perfectly resigned to the expansion of “marriage” should proponents win the argument in the court of public opinion, and pass legislation that mirrors such a popular victory. Change can take time, but when it comes, it comes with the sanction of the people — or better, the consent of the governed. What opponents of same-sex marriage object to is the courts’ insisting that the will of the electorate is less important than the opinion of a single judge who finds the majority voters “irrational” and bigoted.
Exactly. And such change will be achieved by building a consensus — and thus much harder to undo. [Read more…]