With an encouraging high of 58% of Americans now supporting gay marriage, it is beginning to look excitingly inevitable that gay people will finally have full equality before the law with respect to marriage any day, year, or decade now. It is possible that this will happen as soon as this summer when the Supreme Court rules on the constitutionality of the Defense of Marriage Act and California’s Proposition 8. From what I understand the Court has the ability to rule widely or narrowly, to enshrine full equality for gay people before the law in the entire United States or only in California or not at all or to do different things in between.
There is a debate about whether a sweeping Supreme Court ruling in favor of gay rights as deserving full Constitutional protection is what is best for the cause of gay acceptance. Some wholehearted supporters of gay rights would rather that the states settle the issue of marriage one by one for themselves as democratic steam in favor of gay equality continues to steadily increase state by state, year by year. The idea is that were this to happen, the legitimacy of gay civil marriage would be unimpeachably established to the public mind. Gay marriage would have been ratified as an unambiguous expression of the democratic will of the people. There would be no arguments available that somehow an arbitrary and authoritarian ruling by nine unelected Justices imposed a major change to a fundamental social institution while the American people were still manifestly divided that that change was just, necessary, or for the public good. Those worried about a Court ordered equality, rather than one achieved through more patient consensus building, suggest that it might wind up as controversial as Roe vs. Wade, and mean just as intractable conflict for decades as half the country bitterly charges an activist court with prematurely taking out of their democratic hands a debate they did not feel was at all settled to their satisfaction.
Another reason to favor the state by state, more patiently democratic approach is the overwhelming success of the repeal of Don’t Ask Don’t Tell (DADT). DADT was Clinton’s botched attempt at Solomonic Wisdom that tried to allow gays to serve in the military i and only if they would hide their sexual orientation. While this was meant to provide a compromise way for gays to serve where previously they were forbidden outright, in a bitter irony, the policy wound up having far more gays dismissed from the military after its implementation than before, creating a heightened reality of outright persecution for gay service people to live under. Obama was encouraged early in his administration to take drastic, only dubiously democratic, means to end that invidious law, either by ordering it not be followed simply by kingly fiat in the form of an executive order to disregard the law or by sneaking its repeal into a military appropriations law. Obama instead did things methodically democratically. He commissioned a careful study of expected effects of the policy change so that he had more than just a moral argument but also a solidly empirical one to make about the workability of the policy change. He earned the support of the military leadership for a repeal. He earned majority votes in the House and the Senate. He earned the passage of a satisfyingly unambiguously named “Don’t Ask Don’t Tell Repeal Act”. He allowed adequate time for the military to implement the policy as carefully as possible. And, outside of the furthest right wing fringes, the out gay service people have finally been a total complete non-controversy ever since.
So, why not follow a similar pattern of building unambiguous consensus of the people in enshrining gay rights to marriage? Why not patiently make the rational case and judiciously avoid any appearances of imposing values where you can persuade of them? Why let the Supreme Court overrule the jurisdiction of the court of public opinion when we are clearly winning there anyway? If gays are to be fully accorded the dignity they deserve by the broader American public, it is important that they win moral acknowledgment and not just legal protection. And so if they are seen to only have rights because the Court protects them when they have not yet swayed enough people to their side on moral grounds, and if this forestalls or outright sabotages that full moral recognition from coming about, then a massive legal victory could come at a the cost of a diminished moral victory. So, given all of this, why should we hope that the Courts force the right moral judgment on a potentially resentful 40% or more of the populace?
1. Civil rights should not be left up to popular vote.
Even where civil rights can be won through the democratic process, they are too fundamental to be subject to the will of a majority in principle. It is unfair to minorities to force them to have to beg and bow and scrape to majorities for their basic human rights to be acknowledged. Any morally acceptable constitution written today would have to reflect the clear progress in moral thinking of the last several centuries and automatically enshrine the full and equal dignity and rights of all persons irrespective of race, sex, gender status, creed, sexual orientation, ability status, etc. A constitution written today, to be morally acceptable, would have to rule out in principle any laws which systematically denied any mentally competent adult human beings from full enfranchisement, freedom from slavery, full rights of conscience, access to fundamental social institutions, due process, or any of the other rights that we in America were only fitfully granted through centuries of amendments, acts, and Supreme Court interpretations.
So now it is legitimate that, in lieu of even attempting the politically uphill task of replacing or amending our existing, incomplete Constitution, our Supreme Court take it upon itself to interpret the myriad aspirations and precedents to equal rights for all that our tradition contains, as rightfully including marriage rights for gays implicitly. We should not have gay marriage recognized only as a contingent fact of the opinions of a great number of states in the union (and then normalized in the rest of the states through federal rules that states must acknowledge each other’s unions, once DOMA’s obstacle to that is struck down). Rather, we should have the Court on the record as affirming that it is outright unconstitutional to have it any other way than that gays have the right to marry. It is unconstitutional, if we are to interpret the words of our Constitution and amendments and legal tradition in the way that is most morally consistent and most informed by improved, contemporary understanding of moral ideals. The Court should unambiguously state as much so that the official position of the United States of America is not that we have gay marriages because (soon) many or (someday) all the states (happen to) approve of it. The official position of the United States of America, as made clear by our Courts’ reading of our Constitution and our tradition of judicial interpretation, should be that gay rights are beyond majority opinion and are matters of inalienable right.
2. The Legitimacy of the Supreme Court Should Be Affirmed.
I am leery of playing into the hands of those who want to delegitimize the authority of the Supreme Court. It is a vital branch of government to which we owe the guaranteed recognition of countless vital rights that selfish, shortsighted, ignorant, and pigheaded majorities of Americans past, present, or future may not want to acknowledge. The Supreme Court should not feel bullied by the whims of a sometimes morally obtuse electorate or a Congress which manifestly expresses the will of both the ignorant and wealthy at least as much as it ever considers what is actually good or just. Neither should it cave to our increasingly all-encompassing executive branch.
The judiciary is a coequal branch with the executive and legislative in this country for a reason. The expansive interpretation of Constitutional court powers of judicial review has served as a vital check and balance on the flaws of the other two branches. It is not limitless in power, of course. The executive and legislative branches on state and federal levels have recourse to work around the courts if they ever go manifestly too far beyond their bounds. They can even team up with the states and overrule an unjust Supreme Court with an amendment if need be. And while the Court is imperfect and can sometimes get things woefully wrong (as it very well could this coming summer on gay rights), it has shown a capacity for self-correction and the executive and legislative branches are, as noted above, not perfect either.
My point is: we should not shirk from letting the Court be the guarantor of rights it has vitally been in the past because of fear of bogus charges that the judicial branch is illegitimate which surface whenever the right wing (or even sometimes the left) does not get its way in this country. We should stand by the Supreme Court and defend its legitimacy as an independent branch of government that legitimately makes its determinations based on law and morality rather than by putting matters of up to popular vote.
3. The Law is a Moral Teacher
To answer the fear that people will be less likely to accept civil gay marriage as morally acceptable if it is “imposed” by the Supreme Court rather than created through popular consensus, underestimates the power of both established law and the simple status quo to influence people’s moral views. Through sheer habit of obeying and otherwise acknowledging the law, we are prone to internalize it to one degree or another consciously and subconsciously. The more we are accustomed to acceding to the law and finding it either beneficial or not harmful to do so, the more we are implicitly comfortable with it and unwilling to change it and the more we think of it as simply morally legitimate and a good general moral guide.
When gay marriage is an uncontestable legal fact, people will increasingly get used to considering the married gay people they meet as unambiguously legally married. The more that happens and the less that they look at gay marriages as in a legal limbo of only hazy social “reality”, the more that gay marriage will be such a fundamental piece of the legal, moral, and social furniture of the world that it would feel bizarre to ever doubt it as fully legitimate. This is how social realities become so deeply impressed in people’s minds as true and unavoidable features of existence—through the rulings of recognized authorities and the immersive training in habit and mind that comes from thoroughly coordinated social acknowledgments of those realities.
4. Gay Marriage Won’t Remain As Contentious As Abortion.
To the surprise of many liberals, abortion remains a deeply divisive moral and legal issue even today, four full decades after Roe vs. Wade. I don’t see gay marriage being similarly intractable a debate decades hence, for several reasons. Whatever the justifiable suspicions that anti-abortion advocates are ulteriorly primarily motivated by a desire to control women’s autonomy, prima facie it is at least plausible that many are quite convinced of a metaphysics of the person that sees zygotes, embryos, and/or various stage fetuses as morally relevant people with rights robust enough to trump those of their mothers.
Settling these issues decisively requires answering sophisticated, interrelated metaphysical, biological, ethical, and socio-political questions. Fundamental, controversial, philosophical questions about the natures of personal identity, mind, sentience, pain, moral community, moral relevance, autonomy, choice, competing rights, women’s liberation, social consequences, human dignity, law, etc. all need to be sifted out to someone’s satisfaction before they can be adequately persuaded to change their position on the moral and legal correctness or lack thereof of abortion. And I’m ignoring theological considerations since I think they are worthless and in principle should be irrelevant. But they are not so to everyone–in fact, to a seeming majority of anti-abortion advocates they’re pivotal–and so there is yet another real world barrier to a full public consensus on abortion rights today. Finally, abortion rights are not a monolithic issue. Abortion of a zygote is not unambiguously the same as abortion late in the first trimester. And neither are either of those identical with second or third trimester abortions or partial birth abortions. And what about infanticide in the case of the severely deformed newborns?
These are complicated issues and I think the Court was profoundly, bravely, and morally progressively wise to rule that key issues among them must be left to the consciences of pregnant women, with only restricted rights of regulation left to the states.
Gay marriage is really hardly like that. Unlike abortions, which are quite often done secretly for fear of cruel public shaming, gay marriages will be unavoidable and prejudices about them will be constantly dispelled on that account. The last 25 years has made it abundantly clear—the more gay people come out, the more bigotries die. Institutionalized gay marriage will make all the myths which prop up fears of gays die even more rapidly. Gay marriage does not involve the kinds of controversial metaphysical or life and death morality issues that abortion can be construed as containing. It is really an issue, at its core, of overcoming traditionalist biases. When the allegedly “traditional” institution of marriage is formally acknowledged to have changed (as it has innumerable times throughout time and across continents) and there are no serious observable negative fallouts, pragmatically, people will just stop seeing it as a big deal. Finally, the youngest demographics, the ones raised with Roe vs. Wade as settled law but gay marriage as a contentious public debate, are overwhelmingly in favor of gay marriage and yet generally as split as their parents on abortion. That tells me that gay marriage will be a moral no-brainer to an insurmountable majority of Americans quite possibly before legalized abortion is (despite legalized abortion’s considerable head start).
5. Gays Deserve Their Rights As Soon As Possible.
People don’t get to live for two hundred years. They cannot wait decades to have the rights they need in order to maximally flourish in their lives and their loves. Marriage is a vital aid to flourishing for many people. Every decade, every year, every month, and every day that it is denied to gay people, they risk being unjustifiably hindered in their abilities to maximally and harmlessly pursue their own happiness. If we can manifestly improve their lives today without significant counter-productive harms to them, this should be a decisive priority.