Of course men who love men and women who love women should be entitled to all the advantages of marriage, legal and financial and ineffable, including the secret handshakes and special discounts on Juicy Juice and minivans. But we shouldn’t be gnashing our teeth and tearing out our hair just because New York’s appellate court ruled, 4-2, that the state constitution doesn’t require that gay people be allowed to marry. In fact, paradoxically, the decision looks to me like a blessing in disguise, a pseudo-setback. Because the more that marriage equality can be achieved politically rather than by judicial fiat, the better in the long run—not just for gay rights but for progressivism generally. When courts make certain “good” decisions too far ahead of public opinion and legislative consensus, the result can be hugely problematic, as we’ve seen since Roe v. Wade.
So concerning Massachusetts, where the supreme court in 2004 did what New York’s has now declined to do, I won’t be dispirited when that state’s legislature finally gives the go-ahead for a public referendum on a state constitutional amendment to prevent gays from marrying—because I’m confident Massachusetts voters will do the right thing and defeat the proposal, thus giving same-sex marriage even deeper, more democratic standing. Losing certain battles can help the war be won more soundly.
Not that the New York court’s opinion was remotely persuasive. It didn’t find that the heterocentric legal definition of marriage was correct, merely (as constitutional precedent requires) “rational”—or, as Judge Robert S. Smith wrote, not “wholly irrational.” And that ostensible rationality, claims Smith (a Federalist Society conservative who was a Paul, Weiss partner until 2003 and lives on the Upper West Side), is all about protecting children—not about the fact that lots of people find homosexuality weird and icky. In groping for a way to impute rationality, the decision repeatedly uses a strangely conditional future tense (the Legislature could find; the Legislature could believe) and appends it to entirely lame rationales. “The Legislature could rationally believe that it is better … for children to grow up with both a mother and a father.” It could, but if so, why has our Legislature made adoption by gay couples legal?
“The right to marry is unquestionably a fundamental right,” the opinion declares, which is why restrictions on marriage violate the Constitution, but “[t]he right to marry someone of the same sex … is not ‘deeply rooted.’ ” However, the decision also claims that longstanding custom is not the real issue: “If we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice … we would hold it invalid, no matter how long its history.” Really? Because if it’s not prejudice against homosexuals that sustains the law, then what do you call it? Prejudice can even be rational—as with racial profiling—but that doesn’t make it right as a basis of law.
Gay sex was criminal in nine states until 2003, when the Supreme Court decided in Lawrence v. Texas that if it’s legal for heteros to engage in sex not involving penises entering vaginas, it ought to be legal for homos, too—“moral disapproval” doesn’t justify banning it. So, as Justice Antonin Scalia suggested in his dissent, why wouldn’t the same argument apply to gay marriage? Well, the New York court said, you know, um, it just doesn’t, that’s why: Lawrence concerned “private activity,” whereas marriage is inherently public.
What clearly drove this opinion was not a dispassionate consideration of precedent and logic but a nervous scramble to practice judicial restraint and avoid radically overturning ancient custom. It’s what constitutional experts disparage as a “results- oriented” ruling—stacking the deck to get to the decision you want. Results-oriented judicial restraint is supposed to be an oxymoron; until now, that phrase was un-Google-able. “We … express our hope,” the opinion concluded, “that the participants in the controversy over same-sex marriage will address their arguments to the Legislature … and that those unhappy with the result … will respect it as people in a democratic state should respect choices democratically made.”
In other words, they tossed this very hot potato back to the political system, back to us—a disingenuous and maybe cowardly act that may help achieve the optimal outcome.
The first gay marriages on earth took place just five years ago, in the Netherlands, and we la-di-da avant-garde urbanites have to remind ourselves that the prospect of homosexuals marrying homosexuals still seems profoundly … queer, in the old sense, to most Americans. About 40 percent say they know no gay people. Even public opinion in New York City isn’t so far ahead of the curve: According to a Times poll last year, only a minority of New Yorkers support gay marriage. All across the country, there’s enough visceral opposition and ambivalence to make it an election issue, as in 2004, that really works for Republican panderers. And the more that appointed judges rather than elected legislatures reform existing marriage laws, the more galvanized the right-wing hot-button backlash will become, and the greater the support for a national constitutional amendment—passage of which would be a deeply depressing disaster.
As a practical political matter, full-bore gay marriage is useful to have on the table, so that marriage lite—civil unions, domestic partnerships—seems by comparison a moderate option. Supporters of gay rights can learn from the anti-abortion playbook of the past three decades. The positions of the pro-life hard core have served to make modest restrictions on abortion seem reasonable to the conflicted middle. But the risk of righteous passion is overreach.
In retrospect, it’s unfortunate that we pro-choicers won by means of Roe v. Wade. The legal reasoning was dubious, and it inflamed a chronic anger (against the courts, the irreligious, Washington, Democrats) that Republicans have exploited masterfully ever since. If the decision had come, say, a decade later, political history would be quite different. Back in 1973, the tide of opinion and politics was clearly moving in the pro-choice direction. Thirteen states, including six in the South, had recently liberalized their statutes to allow abortion if the fetus had any severe defect or if a woman’s physical or mental health was endangered. But just four states (including New York) had fully legalized abortion. Roe shockingly short-circuited an organic, progressive political process and slammed our politics in a religious and rightward direction.
By contrast, consider the political-judicial history of interracial marriage. The timing was perfect. In 1967, when the Supreme Court got around to declaring laws against interracial marriage unconstitutional, only sixteen states still carried such statutes on their books—whereas less than two decades before, it was illegal for a white to marry a black in most states. In the progress toward marital equality, it’s not yet 1967.
And the way to work it is locally, ripe state by ripe state. Before Massachusetts’s supreme court ignited the national debate, polling showed a solid majority of the state’s citizens in favor of gay marriage. Last year, California passed a bill legalizing gay marriage; the state’s former-bodybuilder governor vetoed it, but if Schwarzenegger is beaten this fall, it’ll be passed again and signed by a Democratic governor. That would be preferable to judges’ remaking the law—the state court of appeal in San Francisco will soon rule on whether the existing statute is unconstitutional—but even a pro-gay judicial outcome would be in sync with the California political consensus. Similarly, any day now New Jersey’s supreme court may rule that state’s existing law unconstitutional—but a poll last month found that Jerseyites now support gay marriage 50 to 44 percent.
States’ rights is an essential American principle—without any inherent ideological tilt.
In some places, gay marriage or even civil unions will never be legal. In 2004, over three-quarters of Georgia voters approved a state constitutional amendment prohibiting same-sex marriage, which the state supreme court affirmed earlier this month. So far, eighteen other states have similarly amended their constitutions.
That’s too bad, but that’s the way it goes; such is the nature of a federal 50-state America. During liberalism’s triumphal march at mid-century, everyone imagined that states’ rights were exclusively a pretext for last-ditch conservative attempts to restrict liberty and civil rights. And back then, constitutional amendments (to lower the voting age, to guarantee women equal rights) were the specialty of progressives. But now it’s the right that defaults to proposing constitutional amendments to try to get what it wants. In 1972, in its first and only big decision on same-sex marriage, Baker v. Nelson, the U.S. Supreme Court ruled that Minnesota could define marriage any way it saw fit—a precedent that’s been used ever since as an argument against gays’ marrying. Yet with states starting to legalize gay marriage, the states’-rights principle of Baker may now become a tool for progress instead of conservatism. The shoes are on the other feet.
With the right ascendant, it’s clear that states’ rights is an essential American principle without any inherent ideological tilt. If liberals want blue states to be able to pass their own enlightened laws concerning gay marriage (or abortion or medical marijuana), then in the 21st century we really have to be willing to let red states enact laws with which we strongly disagree. As a result, the bluest places will become bluer and the reds redder, each pursuing its own vision of virtue. Which looks preferable to having either side force every American to live by its moral rules, and lousing up our politics or even our Constitution in the process. If letting Georgia and Indiana and Utah go their own way is the price for Massachusetts and California and New York’s being free to go ours, I’m willing to pay it.