Gay Marriage: A Case of Conclusions Needing to Catch Up With Premises

Speaking at a fundraiser for Iowa Congressional candidate Jeff Lamberti on Thursday, President Bush said the following:

This campaign only ends after the voters have had a chance to speak. No doubt in my mind, with your help, Dave [sic] Lamberti will be the next United States congressman. (Applause.)

Dave [sic] and I believe a lot of things. We believe that you ought to keep more of your own money. We believe in family values. We believe values are important. And we believe marriage is a fundamental institution of civilization.

Yesterday in New Jersey, we had another activist court issue a ruling that raises doubts about the institution of marriage. I believe that marriage is a union between a man and a woman, and I believe -- (applause) -- and I believe it's a sacred institution that is critical to the health of our society and the well-being of families, and it must be defended.

Jeff Lamberti is one of the few Republican candidates willing to be seen in public with the President, and the President can't even bother to get his name right. He called him Dave, repeatedly. Hilarious.

Not so hilarious is the prospect of having to face a two week blitz of ridiculous television ads warning us that "activist judges" are trying to "attack the institution of marriage." Would it have killed the New Jersey Supreme Court to sit on this opinion for another two weeks? Good grief.

Oh well, at least the opinion itself seems thoughtful and well-reasoned. Though I don't claim to be any expert on New Jersey constitutional law, I do find the basic equal protection argument simple and compelling. As a number of others have pointed out, the opinion does not require New Jersey to allow gay marriage. Rather, it requires the state to extend the same legal rights and financial benefits to homosexual couples that it provides to heterosexual couples. In other words, the New Jersey legislature can choose to follow either the Vermont civil union model or the Massachusetts marriage model. That strikes me as an eminently reasonable and incremental judicial response to an important and legitimate constitutional claim. Indeed, rhetoric aside, it appears to be pretty close to the position President Bush himself endorsed two years ago.

A common response, however, particularly among non-theocon Republicans, is to criticize the court for wading into an area best left to the democratic process. Glenn Greenwald highlights two good examples of this type of response:

Others are arguing that it would simply be "better" if courts stayed away from gay marriage rulings and left it to legislatures to decide. Typical of this latter form of condemnation is James Taranto's reaction: "We'd also be happier if this were thrashed over democratically rather than forced upon society by the courts." Tom Maguire makes essentially the same observation: "My personal opinion is that gay marriage or civil unions is fine if enacted by the state legislature but wrong if crammed down by judicial fiat."

I share Glenn's exasperation with this position:

This just isn't how the law works, and it is always so ironic -- and more than a little contempt-inspiring -- when people who proclaim to oppose "judicial activism" condemn a judicial decision based not on what the relevant constitutional law requires, but instead based on their personal opinion of the policy outcomes (or based on some informal "belief" about what courts should and shouldn't be "involved in," independent of what the Constitution requires). Such individuals are engaged in the very crux of the crime of judicial activism which they claim to despise (that is, deciding legal questions based not on law and precedent but on their own personal preferences).

Either the New Jersey State Constitution -- as defined by the governing precedents applying it -- compels the legal conclusion reached by the New Jersey Supreme Court or it does not. That is the only relevant issue. It's not a matter of picking and choosing which issues we think it would be nice for a court to resolve and which ones we'd sort of prefer -- given our subjective druthers -- the court leave to the will of the majority.

While I agree that a gay marriage or civil union system implemented via democratic means, without the encouragement or mandate of the court, would likely be viewed as more "legitimate" in the eyes of the public, Glenn's absolutely right: that's just not how the law works.

Nor should it be. I don't mean to pick on Tom, but to see the problem with his reasoning, all you have to do is a little word substitution: "My personal opinion is that interracial marriage is fine if enacted by the state legislature but wrong if crammed down by judicial fiat." Or how about: "My personal opinion is that desegregation is fine if enacted by the state legislature but wrong if crammed down by judicial fiat."

Now I don't mean to claim that prohibitions against gay marriage are necessarily the constitutional equivalent of miscegenation laws or segregation, but the point is, it's irrelevant from a constitutional perspective what the state legislature thinks. I doubt too many people believe, at least in retrospect, that the courts should have withheld judgment when faced with laws that clearly discriminated based on race. Determining whether or not someone's constitutional rights have been violated is not an act of "judicial activism." Rather, it's the very reason we have a court system.

And let's take a step back here folks. The primary argument underlying the New Jersey Supreme Court opinion is that it violates the state's equal protection clause to deprive homosexuals of rights and benefits that the state affords to heterosexuals. That's a simple and utterly straightforward argument. Once you accept that sexual orientation is a category not unlike race or gender or creed--and I submit that a majority of people in this country do--the equal protection analysis flows naturally. In my humble opinion, this is just an example of our conclusions needing to catch up with our premises.

Indeed, allow me to make a prediction. In a relatively short period of time, the analysis underlying the New Jersey Supreme Court opinion will be so well-accepted and unremarkable that our children will wonder how it was ever an open question. Mark my words.

For the time being, however, we're going to have to brace ourselves for another round of irrational demogoguery and nonsense about protecting the institution of marriage.