Do the citizens of a state have the right to define legal marriage as a man-woman relationship? Or can courts overrule them on behalf of same-sex marriage?
That courts have the raw power to do that is beyond question. Whether doing it would be a rightful exercise of their power is questionable indeed.
These are among the issues in a lawsuit now working its way through the federal courts, with the Supreme Court of the United States likely to be its final destination.
As this is written, a decision is expected any time from a federal district judge in San Francisco who heard the case argued last month. After he has spoken, the fight will shift to the 9th U.S. Circuit Court of Appeals and then, almost certainly, to the Supreme Court, which could rule in the case ( Perry v. Schwarzenegger ) in the next two or three years.
The immediate focus of the dispute is Proposition 8, a measure amending the California state constitution to define legal marriage in heterosexual terms.
Voters adopted it in November 2009 in response to a state supreme court decision approving gay marriage. Proposition 8 does not affect the legal status of 18,000 same-sex marriages performed after that ruling.
California currently is one of 30 states with constitutional provisions limiting legal marriage to man-woman unions. Five states and the District of Columbia recognize the unions of same-sex couples as marriages.
Defending same-sex marriage in the district court was former U.S. Solicitor General Theodore Olson, frequently described in the media as a conservative stalwart.
He argued that same-sex couples have a right to marry under the due process and equal protection clauses of the 14th amendment. As a precedent, Olson cited a 1967 Supreme Court decision ( Loving v. Virginia ) overturning state laws against racially mixed marriages.
As this suggests, the argument for legal recognition of same-sex marriage, both in the present case and in general, centers on fairness. Straight couples, it’s said, have a legal right to marry. Why not gay couples too?
The fundamental argument against same-sex marriage is that it flouts a centuries-old social consensus on what marriage is and does real injury to heterosexual marriage.
The fairness argument was made forcefully in an op-ed article in the June 8 Washington Post by John D. Podesta and Robert A. Levy. The joint authorship by Podesta and Levy mirrors the odd combination of forces joining homosexual rights groups in support of the cause.
Podesta, a prominent liberal who directs a Washington think tank, was White House Chief of Staff for President Bill Clinton and headed President Barack Obama’s transition team after the 2008 election. Levy is chairman of the Cato Institute, a libertarian think tank in the nation’s capital. Libertarians, usually classed as conservatives because of their antipathy to big government, are ideologically committed to the view that, with few exceptions, people have a right to do as they please.
“The principle of equality before the law transcends the left-right divide and cuts to the core of our nation’s character,” Podesta and Levy wrote.
“This is not about politics; it’s about an indispensable right [to marry] vested in all Americans.”
This is an example of the fallacy known in logic as question-begging: It takes for granted what needs to be proved.
In the case of same-sex marriage, the point that needs proving is precisely that gay couples are capable of entering into marital relationships. To say either that they do or that they don’t depends in turn on how marriage is defined.
The traditional view is that openness to the human goods of gender complementarity and procreation are of the essence of the marital relationship.
At least implicitly, the acceptance of gay marriage involves downgrading the importance of those goods and putting subjective values — mutual affection or something else — in their place.
Among other things, that is fundamentally different from the situation in the Supreme Court’s Loving decision upholding interracial marriage.
Barring a fundamental change in public attitudes, which proponents are working hard to bring about, success in the drive for legal recognition of gay marriage requires that government intervene to impose a definition of marriage favorable to the interests of homosexual rights groups and their allies — through legislation if that is possible, by court decision if it’s not. At bottom, this is what Perry v. Schwarzenegger is about.
As the case moves through the federal court system, some gay rights advocates fret about the danger of winning too big a victory too soon.
That could happen, it’s said, if the Supreme Court a few years from now were to discover a constitutional basis for same-sex marriage and decree its acceptance everywhere.
The result could be a public backlash like the one that greeted the high court’s 1973 decision in Roe v. Wade, which imposed legalized abortion nationwide. In the long run, it’s said, a more limited result might be more helpful to gay interests.
In the end, though, any decision declaring approval for same-sex marriage would be a fundamental blow to traditional marriage, resembling the adoption of no-fault divorce laws that undermined the concept of a mutual bond — a covenant — as a central element of marriage.
Same-sex marriage similarly rests on a definition of marriage in which gender complementarity and openness to procreation in its physical dimension get short shrift.
Russell Shaw is an OSV contributing editor.
Meanwhile ... (sidebar)
In early July, a U.S. district judge in Massachusetts ruled that the Defense of Marriage Act, which, among other things, denies federal benefits to same-sex couples, is unconstitutional. The ruling is expected to be overturned on appeal. From the decision:
“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.”