There’s an interesting editorial today by a couple ex-Justice Department lawyers in the New York Times, arguing that the gay marriage issue shouldn’t be decided in the courts or by constitutional fiat, but exclusively by the legislature.
It’s an interesting perspective. To be sure, I’m sure that most gay marriage proponents would wish that legislatures would be progressive enough to realize what the parliaments of foreign countries are starting to get - that gay marriage isn’t the end of a great institution, but simply its next evolution. Yet that seems to be happening in this country at about the same pace that blacks were given equal access to schools and restaurants, and perhaps for very similar reasons - although a particular state or federal legislator might not have a problem with gay marriage, the gay constituency in any particular area (with the exception of perhaps San Francisco and D.C.) is going to be small in percentage, and certainly smaller than needed to get re-elected. Gay politics are not majoritarian politics. In the early part of the 20th century, black politics were not majoritarian politics, either. Legislatures work hard for the people, and can get do a lot of great work, but when doing what is ethically correct intersects with going against the grain of the majority, well, legislatures tend to be a little chicken, and for good reason - it’s hard to find a guy or gal who thinks that getting voted out for a noble cause is worth more than sticking in there, getting re-elected, and trying to change things slowly over time.
Changing things slowly over time sounds like a good idea, in theory, but what do you tell the gay person who wants to get married, start a family, be able to visit his/her partner in the hospital, leave his partner his estate if he dies intestate, etc. while the legislature is slowly changing things over time? “Sorry, buddy, it’s just not the right time for you?” The struggle between individual minority rights and majority rule has always been that the minority is put in the position of waiting until the majority is willing to be more inclusive. If you’re part of the minority who’s waiting around for the majority to get the right idea, well, it kind of sucks. It’s hard to be told to just wait a little longer to buy that ring or ride in the front of the bus or live one day without your lifestyle being mentioned on at least one political program.
That has been one place that courts have always stepped in throughout our history - to protect the minority, whether they be gay, black, Whigs, Communists, or Japanese-Americans, if the majority oversteps the boundaries of the Constitution. The problem arises, of course, in interpreting a document that people presume to be all-knowing and insightful, but takes up less space than a fancy dining napkin. The Constitution is a wonderful document, but it is not an instruction manual.
Moreover, the problem is that legislatures are created to deal with the population at large, while courts must decide the case of the individuals before them. Legislatures make decisions based no what most people want, or what they think most people want; courts make a decision about what the individual before is alleging, and whether such a claim is constitutionally supported. Legislatures and courts, therefore, work in vastly different ways and have wholly different considerations. But that’s what works about our system of checks and balances - the legislature has the right to pass a bill based on majoritarian needs, but the courts get to assess whether that bill unfairly burdens certain individuals that may not have been adequately considered by the majority.
I think the gay marriage movement has made the mistake of concentrating too much on the courts. Desegregation happened because the executive branch and the legislative branch backed up Brown v. Board of Education. Right now, there’s not a lot of legislative and executive support for some of the recent pro-gay marriage decisions. And I think that’s where the gay marriage movement has to go - appeals to the legislature and executive. But I can certainly understand the plight of the individual who says “enough is enough” and sues for his/her right to be treated equally. And though there has been backlash from the decision of the Massachusetts Supreme Court, legalizing gay marriage, the fact that at least one state in this country has gay marriage and hasn’t gone to hell in a handbasket is a nice example to show to other states’ legislatures - “See, the entire state won’t self-immolate and burn in a fiery pit for all of eternity if you do this.”
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