BEND AND STRETCH:

GAY MARRIAGE ISN'T AN ISSUE FOR THE COURTS TO DECIDE: It's a stretch to claim that state marriage laws flout fundamental human rights. (Stuart Taylor Jr., December 2003, The Atlantic)

a decent respect for government by the people should lead courts to defer to popularly enacted laws that embody deeply felt values—including laws that make no sense to the judges—unless the laws violate clear constitutional commands or fundamental rights. It is frivolous to claim that the marriage laws of every state and every civilization in the history of the world violate any clear constitutional command. And it is a stretch to claim that they flout fundamental rights.

The Massachusetts Supreme Judicial Court gave no deference to popular government in its November 18 decision, in a 4-3 vote, to legalize gay marriage. The court's wording suggests that it is prepared to go even to the point of ordering the state to call same-sex unions "marriage" rather than, say, "domestic partnerships" endowed with the same legal benefits.

Nor was there much prudence in this decision, which will take effect next May. The backlash it has provoked could conceivably prove powerful enough to set back the gay-rights movement for decades. In addition to energizing a push in Massachusetts to overrule the decision by amending the state constitution, the court has given new impetus to the proposed "Marriage Amendment" to the U.S. Constitution, a blunderbuss so broadly worded that it might block even state legislatures from legalizing gay marriage.

Recent history suggests the power of the backlash. After the Hawaii Supreme Court and an Alaska court had signaled their intentions to legalize gay marriage, the citizens of both states overruled their courts in 1998, by 2-1 ratios amending their constitutions to ban same-sex marriage; 35 other states passed laws defining marriage as the union of a man and a woman; the federal Defense of Marriage Act decreed that federal law would not recognize any state's same-sex marriage and that no other state need recognize such a marriage. Just this year, national polls showed a sudden drop in support for gay civil unions—from 49 percent in May to 37 percent in August—after the U.S. Supreme Court's June 26 decision in Lawrence v. Texas, which used unnecessarily grandiose language to strike down an oppressive Texas law criminalizing gay sex acts. And while gay marriage has more support in liberal Massachusetts than in most places, a national poll by the Pew Research Center last month showed respondents opposing gay marriage by 59 to 32 percent.

Gay-marriage advocates have brought their cases under state constitutions because they fear that the U.S. Supreme Court would overturn any decision using the U.S. Constitution to legalize gay marriage. The justices have no jurisdiction to second-guess state courts' interpretations of their own constitutions.

In fairness to the Massachusetts court, its well-crafted opinion was a legally plausible extension of judicial precedents interpreting the Massachusetts Constitution and the U.S. Constitution alike, especially Lawrence. But those precedents had already gone too far down the road of ramming judges' personal policy preferences down the throats of the voters, in the guise of constitutional interpretation.

The always sensible Stuart Taylor.

Posted by Orrin Judd at December 3, 2003 8:15 AM