Supporting Gay Marriage by Vote, Not by Dictate

I support gay marriage. I do so with essentially conservative beliefs in (a) the illegitimacy of government dictating spousal gender; and (b) the salutary and stabilizing institution of marriage as a right of gay Americans.

Likewise for conservative reasons, I do not support judicial fiat of gay marriage. I support every legislative initiative to legalize gay marriage — indeed I have contributed (because of a friend) to the gay marriage initiative in (can it be our most metaphorical state?) Wisconsin. The legitimacy and public acceptance of gay marriage is infinitely greater when voters approve it by democratic majorities or by virtue of their elected representatives. The legitimacy and public acceptance of gay marriage is immeasurably lesser when courts find constitutional rights to gay marriage — thus circumventing the will of the people — and that judicial arrogation of power guarantees a protracted legal and cultural battle.

I likewise support a woman’s right to an abortion. But I believe the Supreme Court was enormously mistaken in Roe v. Wade. Abortion would be legal and largely accepted in all or nearly all states now had Roe v. Wade never happened. The Supreme Court created a socio-legal bloodbath with Roe v. Wade. When an issue is taken out of the legislative — democratic — process, and decided as a matter of novel constitutional law, with no democratic recourse (other than the cumbersomely roundabout pursuit of Supreme Court nominations), opponents are immensely emboldened. They feel cheated. And their intense sense of violation guarantees a protracted and uglier political battle than would have been the case had the issue been properly committed to the legislative process.

Gay marriage should be legal in all 50 states. But it should be legal because a majority say it should be legal. Convincing a majority — as opposed to imposing an anti-democratic result on a majority — is exactly what democratic governance is about. Indeed, the very messiness of democratic governance yields very valuable lessons in who we are.

The state of Maryland is controlled by a Democratic governor and a Democratic legislature — they were having none of the 2010 voter revolt in the Old Line State, whose fascinating motto is Fatti maschil, Parole femine, or Manly deeds, Womanly words. The Maryland Senate passed a gay marriage bill 25 to 21. Then a hiccup in the Maryland House of Delegates. “We didn’t have the votes,” says a Democratic representative who declined to show up for a House Judicial committee vote on the measure.

What’s happening in a state that should be an obvious legislative victory for gay marriage?

African-American pastors are “some of the most vocal opponents” of the measure, the Washington Post reports. And their opposition is working. Now there’s a wrinkle. I believe these African-American pastors are wrong, but do I want to see them trumped by a court that undemocratically declares they are wrong? No. I want to see them defeated by a fair legislative process.

That may not happen quickly, but when it happens, and it will, gay marriage will be a strong civil institution.

I understand the impatience of gay marriage advocates. The democratic process has been unkind. As John McCormack notes,

Gay marriage has been defeated legislatively in New York in 2009 and in New Jersey in 2010. Through referenda, voters repealed Maine’s law in 2009 and invalidated the California state supreme court’s ruling in 2008.

In Iowa, the third state (after Massachusetts and Connecticut) to have same-sex marriage imposed by court order, three Supreme Court judges were sacked in November because of their ruling. The only states that got gay marriage laws on the books though the legislative process are Vermont (2009) and New Hampshire (2010).

I believe these anti-gay-marriage voters are wrong. I believe history will show them wrong. But I respect them and our democracy. I respect the democratic means by which we incrementally progress. I respect the legitimacy conferred on majoritarian issues fairly won, and I do not respect the culture wars kindled by anti-majoritarian judicial dictates.



10 Responses to Supporting Gay Marriage by Vote, Not by Dictate

  1. Jeff Veazey says:

    Can the majority ever be so wrong then, that judicial action is compelled to smote an evil injustice?

    • Yes, to be sure, and Brown v. Board of Education is an example. But it is never to be undertaken lightly. It must be understood as anti-majoritarian, and likely to fire a culture war, and nevertheless embraced because the grievous injustice cannot await the democratic process — and such instances will be rare, because the democratic process confers legitimacy in a way that judicial fiat never can.

  2. I’ve heard that a lot…legislating from the bench. The way I look at it is “they” are using the system to their advantage. Whether or not it’s right is another story. I’m not sure how I feel about it. You referenced Brown v. Board of Education. How do you feel about cases like Loving v. Virginia (interracial marriage)?

    • Loving v. Virginia is exactly like Brown v. Board of Education. Loving (a 9-0 vote) struck down Virginia’s anti-miscegenation statute, in 1967, several years after Brown. As to race, America has been vile. There was much catching up to do. We understood where it was necessary to go. We understood the embarrassing intellectual bankruptcy of racism. Yes, racism existed, but it had not a whit of credibility. As to racism, yes, the courts needed to get ahead of the people, and the people would be duly humbled. The courts, in these instances, were like scolding parents, belaboring the obvious, and dispatching quaint and misbegotten laws, for which the chastened people would not likely have voted to enact again. There is a difference, however, when courts purport to legislate themselves.

  3. Snoring Dog Studio says:

    Great post and excellent comments. Kendrick, your phrase, “the salutary and stabilizing institution of marriage” gave me much pause. “Stabilizing” as in how?

    • Thanks SDS. I mean “stabilizing” in the general cultural sense of settling into a committed relationship, of forswearing hyper-sexuality, of acquiring our culture’s legal imprimatur of intimate and exclusive partnership. I mean that marriage is a conservative institution (using “conservative” in its socio-cultural, not political, sense), and gay couples should have equal access to it. Interestingly, just to tie together some of the other comments, “civil unions” (all the rage as a “compromise” regarding gay marriage) have the whiff to me of the “separate but equal” doctrine. Okay, we’ll ensure “equal” relationship benefits, but keep gays over there, outside our sacred institution of marriage. And yes, that sounds like a constitutional argument along the lines of Brown v. Board of Education. I’m not there yet. I still want the battle to be won with democratic majorities, for the reasons I stated in the post (and because I don’t believe sexual orientation gives rise to equal protection arguments to the same degree that race does), but I’m sympathetic to the frustration of gay couples excluded from marriage by (in my opinion) currently mistaken majorities.

      • Snoring Dog Studio says:

        I support same-sex marriage as well as all other equal benefits that heterosexuals enjoy. But the democratic process, though it may “confer legitimacy in a way that judicial fiat cannot,” may not bring about a “just” decision. It may create the political wangling and backsliding going on in Maryland now. We’ll see.

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