Five years ago, when the highest court in New York State refused to mandate state recognition of same-sex marriage, I disagreed with gay activists who criticized the decision, writing, “It is the job of courts to interpret the law, not set social policy“, adding
Despite the unfortunate rhetoric of the releases of HRC and NGLTF, I am delighted to see that their leaders are now looking to these legislators to make that case. Let’s hope this defeat convinces them to spend more time promoting gay marriage in legislatures and other popular fora rather than in courts of law.
Now that they have done so; they have finally achieved the result they wanted. Elected state legislatures, I have always contended, are the appropriate fora to decide such issues.
The process was often messy, the rhetoric regularly exaggerated, the understanding of marriage generally at odds with the history of the institution, but at least those who made the final decision were elected by the people of the various jurisdictions of the Empire State and thus answerable to them at the ballot box.
We may not have had (and indeed did not have) the type of civil discussion of the importance and meaning of marriage that would have helped strengthen the institution (and not just in New York), but the branch of government responsible for deciding whether the state should privilege same-sex unions as it has long privileged different-sex monogamous unions resolved the issue.
It’s amazing the speed with which our elected legislatures have moved to consider state recognition of our (gay) relationships. Just six years ago, the Connecticut legislature voted to recognize civil unions, without a court mandating it to do so. I blogged on the significance of that vote here.
With the success in New York, it’s time (well, it’s long past time) to move the debate from the courts to the legislatures, as has happened in that state. And once it’s gone through the legislatures, indeed, even as it’s going through the messy process of law-making in other jurisdictions, it’s important we consider state-recognized marriage as more than just personal validation, more than a trophy in the culture wars, but also as an ancient and honorable institution which imposes duties on those who seek its protections and gain privileges from the state.
In sum, we need to talk not just about why the state should recognize our unions, but why same-sex monogamous unions are good in and of themselves.
B. Daniel Blatt