Another day, another important SCOTUS decision gets handed down, this time on gay marriage. Just like with the Obamacare decision, Via Meadia will not be providing legal commentary. Political and social commentary is where we think we have something to offer, so please don’t expect much from us here about whether this was, constitutionally, a good or a bad decision.
With that out of the way, let’s proceed. The big issue politically with a ruling like this is that it touches on fundamental social questions and institutions—and how should they be decided in a democratic republic. My own basic view is that ultimately the moral sense of the people expressed either directly through referendums or indirectly through their elected representatives is the only possible way to handle these kinds of things, simply because an abstract constitutional right that isn’t embraced by the majority will not stand no matter what judges say or write. So, for example, the anti-segregationist laws and constitutional provisions adopted after the Civil War became dead letters, more or less, when the political will to enforce them died away.
So in theory I would prefer that a change like this be enacted through a law passed in Congress rather than handed down from on high as a judicial decree.
However, it’s also true that if one looks at the polls and at the growing movement among states, the Supreme Court is operating here more as the voice of American opinion than as anything else. We are not set up for national referendums—and that’s a good thing, in my opinion—so the Court’s intervention is not the kind of problem it was in, say, in Roe v. Wade, or the school prayer decision, where it imposed a view on the country that the country wasn’t ready for.
As to the specific question of gay marriage, I’m personally of the view that there is a major distinction between religious marriage and civil marriage. There are lots of civil marriages that various religious groups do not accept, and that is as it should be. Insofar as the question is whether gay couples should have a right under civil law to enter into a legally recognized and legally defined partnership, I would agree with the Court that the law should leave this choice to the people involved.
At the same time, the civil law does not and should not have the power to compel religious groups to recognize as religious marriages civil unions that violate the canons of their faith. Nor should religious institutions be required to open their facilities for the use of wedding ceremonies that violate their ideas about what a marriage is. If a Catholic church only wants to hold Catholic weddings, that is the church’s decision to make, not the Court’s.
As to social policy—whether providing legal recognition and social acceptance to same-sex couples is good for society or bad for it—that’s a question that we just can’t answer yet. The widespread acceptance of adult homosexuality is genuinely new in Western society. (The ancient Romans and Greeks would have opposed gay marriage between adult men as a terrible perversion.) We will have to see how it works out in practice.
In the interim, social policy ought to focus on strengthening the non-gay marriages (without discriminating against or excluding gay marriages from social benefits or legal recognition). It’s clear that those marriages—especially for lower middle class and lower class people of all races—are in bad shape indeed. If it turns out that opening civil marriage to gay couples makes pro-marriage policy less contentious, then even hardcore religious opponents of gay marriage might end up taking some comfort from this ruling.
One final thing to note: the two Obamacare decisions and this decision should do a lot to dispel the idea that the Supreme Court was becoming some kind of annex of the Republican Party or that the justices are totally and predictably divided on partisan lines. Strengthening the Court as an institution is something that great justices—like John Marshall—have always thought of as an important part of their mission. It’s important to do that, and, although people who disagree with the legal basis for these and other controversial decisions may be unhappy about the direction the court is heading in, it’s actually an important part of the Chief Justice’s job to enhance the legitimacy of the Court in American society. That is likely to be the result of the Obamacare and gay marriage decisions of this week. The Supreme Court, from a political and policy point of view, is doing its job. We’ll leave the arguments over whether it’s getting the Constitution right to the specialists who will, as usual, speak with great confidence and assurance as well-educated and experienced experts who totally disagree with each other.