Gay Marriage and Activism

I’m for gay marriage. I think it would provide a number of benefits to gay people, and a number of benefts to mainstream society’s interaction with gay people. That puts me somewhat outside of the Republican mainstream on the issue. But I am unsure that the judicial path to gay marriage is the path which is most likely to lead to good results for gay people. This is going to be a ‘thinking aloud’ post so if you require firm conclusions and copious evidence, please read no further.

Before I move on I want to mention that in Denmark (where gay marriage has been legal for quite some time) the gay divorce rate is an astonishingly low 17% compared with the 46% rate for heterosexuals. I will have to leave the why of that to someone more knowledgeable, but I note this because it should provide a relatively interesting counterpoint to the notion that the existance of gay marriage somehow damages the institution as a whole.

I aplaud the publicity stunt currently going on in San Francisco. But it needs to be recognized as a publicity stunt. It will do very little to further the legal cause of gay marriage. I think the demonstrative effect of having gay couples wait for hours in the rain for a chance to get married is very powerful. However I fear the next step, trying to litigate the effectiveness of these marriages, is likely to be damaging in a number of ways.

The first is that litigating our way to gay marriage is likely to cause a significant backlash. One of the problems of engineering major social changes through the court system is that it leaves those on the other side feeling excluded from the process. For me the classic example of this is abortion law. If left alone by the Supreme Court, actual abortion laws would probably not be dramatically different today--especially in the first 5-6 months (which is when most abortions take place and which, not coincidentally, is when most Americans are more comfortable with the idea). But by litigating it into a new constitutional right, abortion law was removed from the democratic process. This left a huge number of pro-life voters feeling like their democratic voice had been written out of existence. This was a catalyst for the organization of what we now call 'The Religious Right'. Roe v. Wade was a tremendous organizing focus for the religious right. Even if it had lost 50 legislative battles over abortion in all of the 50 states, it could not have rallied as effectively as it did around the novel Constitutional decision made by 7 Justices of the Supreme Court. The Supreme Court took an already divisive topic and turned it into a festering wound which 30 years later still gnaws away at the body politic.

Second, and closely related, having these types of changes engineered in the court system takes away from the legitimacy of the courts themselves. On the one had, if a legislature decides to do something new on a close vote, well that is what legislatures do. Courts, on the other hand, are supposed to enforce the law. When interpretations of the law change drastically, without similarly drastic changes in the words of the law, this leads people to believe that judges are injecting their own view into the case rather than being led by the law. Judges are trusted as arbiters of the law because they are expected to apply IT to the cases that come before them. When people begin to suspect that they are changing IT to suit their whims, such people are not going to trust judges. This will be a problem when legislatures really do contradict the Constitution because judges will have squandered their authority on lesser cases.

My unprovable conjecture is that 10-15 years from now, gay marriage will be legal with or without major court cases on the topic, but that if the main route to marriage is litigation it will be a much more divisive topic 10-15 years from now than it would be if it went through legislatures and administrative channels.

If the main path to marriage was legislative, Bush could not say: "Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard."

We are so close to winning on gay marriage, but if we act prematurely, or in the wrong venue, we risk turning the issue into a deep fissure in the nation. If we act prudently it could be more like 'Queer Eye'--generally very good, with some grumbling from the fringes. Isn't that worth the hard work of using the legislative process rather than shopping around for a pliant judge?

Posted by Sebastian Holsclaw at February 23, 2004 2:16 AM