This week, the Supreme Court heard oral arguments for two cases pertaining to the illegality of same-sex marriage in the United States. On Tuesday and Wednesday, supporters and critics of gay marriage alike gathered together in person and on social media sites to voice their opinions on the issue of gay marriage. Red equal signs proliferated on Facebook as many U.Va. students expressed solidarity with the rights of same-sex couples. However, the expressions of disapproval and support concealed the fact that the very organ of government that should hold and resolve the debate over same-sex marriage is not the Supreme Court. Whether you long for the day when gay couples can marry or you shudder at the thought, the collective resolution of the American people should not come through the institution of the courts.
Discussions of gay marriage often couch the issue in terms of “equal rights,” a syllogism that makes it seem as though the logic is obvious: if we want equal rights, we should press for it in the courts. Isn’t that what happened during the Civil Rights Era? How are gay rights any different? There are a number of answers to this argument, which together form a powerful case against using the courts as the pathway to marriage equality.
The first is that the issue of marriage equality is far more nuanced than that of racial equality and civil rights. When dealing with racial equality, the Court had specific, intentional constitutional precedent that established racial discrimination as unlawful: the context and intent of the Fourteenth Amendment and the specific language of the Fifteenth Amendment, for example. It was clear what the Constitution had to say on the issue of racial inequality: it was impermissible. No matter what people believed about race, the Constitution had a specific stance for the Court to interpret.
Same-sex marriage is more complicated. Because it deals fundamentally with issues of social morality, a domain the courts have traditionally left to the legislature, the question of same-sex marriage is not analogous to the question of civil rights for all races. Opposition for gay marriage rests on the same bedrock that upholds prohibitions against bigamy, obscenity, bestiality, and all other laws that seek to define for society what is immoral or unacceptable behavior. The promotion of a majoritarian moral interest has long been held by the Court as a constitutionally legitimate state interest (at least until recent years), not necessarily because it is rightfully legitimate but because the Constitution is silent on such issues. Phrasing the question in terms of “rights” wrongly obscures the fact that gay marriage is at its core a clash of values over what is right and what is wrong. Those who believe same-sex marriage is acceptable view it as a right; those who believe it is unacceptable do not view it as a right. The Constitution, meanwhile, is silent.
Some may argue that since the Judeo-Christian ethic is in fact what is upholding the morality against gay marriage, prohibitions like Proposition 8 are an unconstitutional breach of the boundaries of Church and State. However, this boundary was erected to keep the state free from overt influence from any single creed or religious practice — not to put an end to all legislation that attempts to establish a moral order based on a widely followed ethical framework, such as that laid down by the Abrahamic religions. As mentioned previously, we accept many obscenity and sexuality laws that are based on this moral code — are these also violations of the “Establishment Clause”? Is any legislation influenced by Judeo-Christian morality an affront to the Constitution? The answer is no, absolutely not, and the Court has recognized this in case after case. Even so, a strong argument can be made for the recognition of humanism and atheism as competing “religions” to the Judeo-Christian ethic in which case the gay-marriage debate is not an instance of Church v. State but “Church” v. “Church.”
Critics will be quick to point out that for many people, the question of extending rights to blacks was a moral issue, and yet we deemed it proper to address it in the courts. Why should gay marriage be any different? First, perhaps we should have indeed left the issue of civil rights to the legislature — an argument that I will flesh out later. But, more importantly, the Constitution spoke unequivocally on the issue: racial discrimination was unconstitutional. We cannot find similar clarity on the question of whether same-sex unions are to be constitutionally mandated.
Supporters of gay marriage also use the Fourteenth Amendment, which guarantees equal rights for all citizens, as the backbone of their constitutional arguments. However, equating the social and moral convention of marriage to fundamental political rights like voting and free expression, which the Fourteenth Amendment was designed to protect, is an interpretive leap that deserves fierce skepticism. The simple reality is that for many Americans, the question of marriage is one of morality and social norms, while for others it is a question of equal rights. When there is disagreement on whether something is a right, we look to the Constitution for guidance. Yet I dare you to find a mention of marriage in the Constitution. And if you will argue that it is a right under the “penumbra” of rights that constitute the right to privacy, why can we not extend this logic to laws against bigamy, bestiality, and obscenity and invalidate them all as unwarranted intrusions on our rights? If the Court’s job is simply to decide what the Constitution says on an issue, the argument for marriage as an established, inalienable right is on very shaky ground.
The linchpin in this entire argument comes down to judicial restraint on controversial issues of social morality. Appealing to nine unelected judges for resolution on our most contentious disputes sidesteps the branch of government in which heated debated over murky issues deserves to take place: the legislature. Do nine citizens really possess the requisite wisdom to lay down a definitive verdict on a question that has so aggressively divided the nation? Do their opinions really count more than the millions of Americans that will fundamentally disagree with them, regardless of the decision? Perhaps such is the reality of almost any Supreme Court decision — but at least in other cases, the court has a firm constitutional backing to its logic. When it comes to social morality, the justices are no more equipped for judgment than any theologian or humanist.
In regard to these specific cases, the court can, and should, reach conclusions that do not solve the social question of marriage equality for the country. Any substantial policy decision on this issue made by the court will not be accepted as valid. Close to half the country will not accept the resolution, regardless of which way it goes; bitterness and mistrust of government will inevitably emerge. The democratic process will be seen as subverted by a self-interested elite. The fall-out from the Roe v. Wade decision is proof of this fact. Why risk such estrangement?
If you believe in gay marriage, fight to convince your fellow citizens of its merits and achieve equity by changing the hearts and minds of the nation through the good, old fashioned legislative process; don’t resort to re-interpreting the Constitution and forcing your opinion on others through the iron judgment of our highest court. We cannot substitute judicial fiat for engaging each other in substantive conversation on what we believe is right or wrong. Otherwise, we risk blurring the lines of authority between the branches, laying the groundwork for a nation at war with itself.
Russell Bogue is an Opinionist columnist for The Cavalier Daily. Contact him at r.bogue@cavalierdaily.com.
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