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OPENING ARGUMENT - Gay Marriage Isn't an Issue for the Courts to Decide OPENING ARGUMENT - Gay Marriage Isn't an Issue for the Courts... OPENING ARGUMENT - Gay Marriage Isn't an Issue for the Courts to D... OPENING ARGUMENT - Gay Ma...

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OPENING ARGUMENT - Gay Marriage Isn't an Issue for the Courts to Decide

November 22, 2003

As a policy matter, gay marriage is an easy call. I'm for it.

Many committed gay couples want very much to marry. A legislative vote giving them that right would cause no harm, except to psyches skewed by anti-gay animus -- and those persons would remain free to express their moral disapproval. The arguments that gay marriage would damage traditional marriage by tempting people who might otherwise be straight and monogamous to become gay or promiscuous are extremely weak. So is the claim that gay marriage would be bad for children. Even assuming the much-disputed proposition that kids are better off in traditional than in gay households, legalizing gay marriage would not move any child out of a traditional household. Rather, it would bring the stability, respectability, and legal benefits of marriage to millions of children who are already being raised by gay and lesbian couples.

The constitutional question is much harder. The main reason is that a decent respect for government by the people should lead courts to defer to popularly enacted laws that embody deeply felt values -- including laws that make no sense to the judges -- unless the laws violate clear constitutional commands or fundamental rights. It is frivolous to claim that the marriage laws of every state and every civilization in the history of the world violate any clear constitutional command. And it is a stretch to claim that they flout fundamental rights.

The Massachusetts Supreme Judicial Court gave no deference to popular government in its November 18 decision, in a 4-3 vote, to legalize gay marriage. The court's wording suggests that it is prepared to go even to the point of ordering the state to call same-sex unions "marriage" rather than, say, "domestic partnerships" endowed with the same legal benefits.

Nor was there much prudence in this decision, which will take effect next May. The backlash it has provoked could conceivably prove powerful enough to set back the gay-rights movement for decades. In addition to energizing a push in Massachusetts to overrule the decision by amending the state constitution, the court has given new impetus to the proposed "Marriage Amendment" to the U.S. Constitution, a blunderbuss so broadly worded that it might block even state legislatures from legalizing gay marriage.

Recent history suggests the power of the backlash. After the Hawaii Supreme Court and an Alaska court had signaled their intentions to legalize gay marriage, the citizens of both states overruled their courts in 1998, by 2-1 ratios amending their constitutions to ban same-sex marriage; 35 other states passed laws defining marriage as the union of a man and a woman; the federal Defense of Marriage Act decreed that federal law would not recognize any state's same-sex marriage and that no other state need recognize such a marriage. Just this year, national polls showed a sudden drop in support for gay civil unions -- from 49 percent in May to 37 percent in August -- after the U.S. Supreme Court's June 26 decision in Lawrence v. Texas, which used unnecessarily grandiose language to strike down an oppressive Texas law criminalizing gay sex acts. And while gay marriage has more support in liberal Massachusetts than in most places, a national poll by the Pew Research Center last month showed respondents opposing gay marriage by 59 to 32 percent.

Gay-marriage advocates have brought their cases under state constitutions because they fear that the U.S. Supreme Court would overturn any decision using the U.S. Constitution to legalize gay marriage. The justices have no jurisdiction to second-guess state courts' interpretations of their own constitutions.

In fairness to the Massachusetts court, its well-crafted opinion was a legally plausible extension of judicial precedents interpreting the Massachusetts Constitution and the U.S. Constitution alike, especially Lawrence. But those precedents had already gone too far down the road of ramming judges' personal policy preferences down the throats of the voters, in the guise of constitutional interpretation.

Reasonable people disagree on this, of course, and decades of both conservative and liberal judicial activism have blurred the distinction between legitimate constitutional interpretation and illegitimate judicial fiat. These are not mutually exclusive categories, but points on either end of a continuum. The validity of any constitutional decision is a function of where it falls on that continuum -- based on the plausibility of its derivation from the constitution's text, history, and structure -- and whatever balance one strikes in resolving the dilemma identified by Learned Hand in 1958:

"Each one of us must in the end choose for himself how far he would like to leave our collective fate to the wayward vagaries of popular assemblies. For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."

The Massachusetts court was certainly on firmer constitutional ground than its Vermont counterpart was in its 1999 gay-union decision, which it based on a completely irrelevant constitutional clause that had been adopted in 1777 for the apparent purpose of precluding creation of a legally privileged aristocracy. In a bold example of the "let's-do-it-because-we-can-get-away-with-it" school of jurisprudence, the Vermont court "interpreted" this clause as requiring recognition of either same-sex marriages or "domestic partnerships" with the same legal privileges. The state Legislature went for the "domestic partnership" compromise.

The Massachusetts court, on the other hand, based its ruling on Article I of the state constitution, whose provisions are roughly analogous to the 14th Amendment's due process and equal protection clauses. The first provision asserts: "All people are born free and equal and have certain natural, essential, and unalienable rights," including "the right of enjoying and defending their lives and liberties" and "that of seeking and obtaining their safety and happiness." The second provision states: "Equality of the law shall not be denied or abridged because of sex, race, color, creed, or national origin." Noting that "the two constitutional concepts ... overlap," and are "more protective of individual liberty and equality" than the federal due process and equal protection clauses, the court held that Article I requires a right to gay marriage because the state's (very weak) justifications for denying it were "irrational."

While the Massachusetts court ignored (as usual) the original intent of Article I, it drew legal support from its own precedents, and moral support from Lawrence's holding that voters' moral disapprobation of homosexuality is not a legitimate basis for legal distinctions that discriminate against gays and lesbians. The Lawrence decision "dismantle[d] the structure of [federal] constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions," as Justice Antonin Scalia wrote in dissent.

So why do I think the Massachusetts court went too far? The first reason is that, in my view, Lawrence went too far. The majority's sweeping endorsement of "autonomy of self [in] intimate conduct" is well grounded in the moral philosophy of John Stuart Mill, but not in the language or history of the due process clause -- the provision that the majority relied upon -- or any other provision of the Constitution. The Court should have struck down the Texas sodomy statute on the narrower ground used by Justice Sandra Day O'Connor in her concurrence: By banning homosexual but not heterosexual sodomy, and thus singling out "one identifiable class of citizens for punishment that does not apply to everyone else," the Texas statute violated equal protection.

In addition, while withholding from gay couples what the Massachusetts court called the "tangible as well as intangible benefits [that] flow from marriage" is wrongheaded and unjust, it is simply not oppressive in the same sense as is criminalizing gay sexual intimacy. The Massachusetts court was hyperbolic to say that current marriage laws inflict "a deep and scarring hardship" on gays. It was arrogant to hold such laws "irrational," despite their deep roots in our history and popular values and in what dissenting Judge Robert Cordy called society's effort "to steer ... acts of procreation and child-rearing into their most optimal setting." It was ahistorical to imply that gay marriage is a "fundamental right," a doctrine that would also require endorsement of polygamy and adult incest.

And while constitutional scholars have argued cogently in decades past for heightened judicial scrutiny of discrimination against gay people -- a politically powerless minority long oppressed by majoritarian prejudice -- gays now wield enough political clout to make such arguments somewhat anachronistic.

"The advancement of the rights, privileges, and protections afforded to homosexual members of our community in the last three decades has been significant," as Judge Cordy said, "and there is no reason to believe that the evolution will not continue." Unless the courts keep jumping the gun, and fueling the backlash.

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