Conservatives: Keep Gay Marriage Out of the Courts

By David B. Rivkin Jr. and Lee A. Casey, lawyers who served in the Justice Department under Presidents Ronald Reagan and George H. W. Bush (THE NEW YORK TIMES, 17/11/06):

CONSERVATIVES have consoled themselves since Election Day with the knowledge that many “conservative” social issues did well — including (and especially) the eight state “marriage amendments” on the ballot — even if the Republican candidates faltered.

These marriage measures, of which only Arizona’s was defeated, generally prevent recognition of gay marriages by defining marriage as a “union between a man and a woman” in the state constitutions. More than half of the states now have such constitutional provisions (some of which would also forbid same-sex civil unions), and conservatives need to reconsider whether that’s really what we want. There are, in fact, some very good reasons conservatives should oppose this approach.

The definition of marriage is, of course, of critical importance to individuals on both sides of the issue and to society at large. But at least since independence, the question of who may marry and under what conditions has been the province of the state legislatures. And it should have remained that way.

The justifications for stripping the legislatures of authority in this area and settling the matter in a state’s constitution are wanting. It’s true that courts in certain states — for example, Massachusetts — have interposed themselves in this debate, misconstruing “equal protection” guarantees as requiring recognition of gay marriages. But errant or aggressive judges can be corrected by amendments that simply deny the state courts authority over this issue, reserving the definition and regulation of marriage to the legislatures alone.

Moreover, the meaning of marriage, as important as it is, is no more crucial than many other issues of individual autonomy and morality that have also historically been decided by the legislatures. These include adoption and child-welfare laws, as well as a host of criminal and other regulatory measures of the greatest moment.

Indeed, cluttering state constitutions with the disposition of many difficult social issues — and this process will probably go on, and even accelerate, especially if all of the states choose to define marriage in their constitutions — is likely to empower the judiciary more. This paradoxical and unwelcome result would arise because some of the newly enshrined constitutional definitions and guarantees are sure to conflict with one another, leaving the courts the only venue for resolving the tension. Conservatives should find this outcome highly unpalatable.

At the same time, leaving the marriage issue to the state legislatures has many benefits. As Edmund Burke taught, time-tested institutions and practices should be changed only upon the clearest need, and then only to the extent necessary. If the courts in some states have trespassed on the legislatures’ traditional and legitimate authority over marriage, they can be checked without altering the otherwise established norm of legislative power in this area.

Also, allowing the issue to be decided by state legislatures would be in the best tradition of American federalism: the states act as laboratories of political change, and remain free to give divergent answers to difficult social questions. Operating within the federalist context, state legislatures are likely to enact different definitions of marriage, some allowing same-sex unions, others banning them. Significantly, the federal Defense of Marriage Act, signed by President Bill Clinton in 1996, already ensures that the choices of one state cannot be imposed on others. If that statute is ultimately found to be ineffective or unconstitutional, additional steps can be considered at the federal level to ensure that individual state choices are respected.

If state legislatures were free to define and re-define marriage, we would have genuinely political solutions to an especially difficult and incendiary issue. Very few people do not hold deep convictions regarding same-sex marriage. To enshrine the definition of marriage in a state’s constitution removes the issue from the give-and-take of the normal political process. That process rarely produces an absolute victory for any side, but it also rarely results in absolute defeat. The outcome is never final; the defeated party can rally, regroup and try again.

By contrast, a constitutional amendment resolves a policy issue with a sufficient finality to prompt a more or less permanent sense of injustice and bitterness on the losing side. Conservatives, religious conservatives especially, should understand these dynamics. In Roe v. Wade, the Supreme Court granted victory on constitutional grounds to the abortion-rights position in the abortion debate, and that decision has polarized American politics for nearly two generations. America does not need another such issue. The wave of marriage amendments — at least those that go beyond removing the issue from judicial resolution — should stop.