April 08, 2009

A Lesson in the Right and Wrong Ways to Enact Same-Sex Marriage

This week the Vermont Legislature collected enough votes to override the Governor's veto and legalize gay marriage.  I agree with James Joyner at Outside the Beltway who writes:
Regardless of one’s views on the merits of people of the same sex being allowed to marry, this is how drastic changes in social norms — and this is surely that — are supposed to take place.  Vermont is perhaps the most liberal state in the union and has every right to make this call for itself.  And the fact that this was done through an overwhelming vote of representatives accountable to the people rather than by judicial fiat makes the outcome much easier for opponents to swallow.
While I am sure there are social conservatives who disagree with the legislature, I have yet to see outrage expressed at this legislation in the conservative blogosphere.  Most conservatives have long championed federalism and respect for the will of the people and this legislation embodies both. 

Now to the wrong way to enact same-sex marriage.  Last Friday the Iowa Supreme Court ruled unanimously to legalize same-sex marriage.  Matthew Franck has a scathing rebuke of the Court at The Public Discourse.  He notes in particular the Judges disregard for the will of the people.
More than once, Justice Cady’s opinion actually cites the undoubted prospect of failure for the cause of same-sex marriage in Iowa’s democratic institutions as a justification for the court’s intervention on the cause’s behalf on allegedly constitutional grounds. The judges, you see, are “free from the influences that tend to make society’s understanding of equal protection resistant to change.” And so when he follows the lead of the U.S. Supreme Court’s 2003Lawrence v. Texas ruling (overturning a state law criminalizing sodomy), claiming that “the standards of each generation” are the touchstone for understanding what the Constitution says about equality, we know perfectly well that Cady does notmean that democratic majorities will be consulted for discerning what those standards are. No, “a new understanding of equal protection is achieved” whenever the judges say a new thing on the subject. Adorning the opinion with the standard insincere pledge of a “keen and respectful understanding” of separation of powers that is employed by all judicial activists, Cady all but admits that the Iowa supreme court has just amended the state constitution. This is easily done illegitimately by the judiciary, but is a very hard thing for Iowans themselves to do legitimately through the prescribed amendment process. Cady knows this too, remarking that the people can “shape it over time,” while silently passing over the fact that the judiciary can do it in a few minutes on a Friday morning. 
Franck makes another point hitting at the root of the same-sex marriage conflict. 
This maneuver masks the essential weakness of the argument for same-sex marriage, which comes finally to this: because some persons are “sexually and romantically attracted to members of their own sex,” and because some of those persons have entered into “committed and loving relationships” with each other, they are entitled to “the personal and public affirmation that accompanies marriage.” 

From this vantage point, the feelings individuals have for one another are the authoritative wellspring of moral principle.
If you can extract yourself from the emotions of the debate, one can easily take the justification Franck provides for same-sex marriage and substitute "their brother or sister" or "multiple partners" for "members of their own sex" and come up with the same argument for incest or polygamy.  But as a society, we refuse to provide "public affirmation" for these types of relationships, which shows that we draw a moral line in the sand at some point.  The fact that we do this provides additional support for allowing the will of the people to decide where that line should be drawn.  It also fuels the federalist argument that each state should be able to draw their own lines to best reflect their constituency.  

If states choose to recognize same-sex marriage, hopefully they will choose the Vermont method over the Iowa method.  It will strengthen democracy and tone down the tension in the same-sex marriage debate.

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