Supporting Gay Marriage by Vote, Not by Dictate
March 3, 2011 10 Comments
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.