Dale Carpenter at Volokh Conspiracy has apparently given up on the idea of judicial challenges to promote same-sex marriage. This is because of an exceptionally long decision of the Maryland Supreme Court, ruling against same-sex marriage by 4-3 vote (two of the majority votes were retired Justices; it is unclear how their successors would have voted). Noting that since the Massachusetts case of Goodridge v. Department of Public Health, no state court has interpreted a right to same-sex marriage into their various state Constitutions. The only significant remaining pending case is here in California (there is another one going in Iowa widely expected to fail); the Supreme Court here has already ruled that in the absence of a clear legislative or judicial finding that a prohibition on same-sex marriage is improper for some reason, local officials may not issue marriage licenses to same-sex couples.
As Prof. Carpenter says, “If [same-sex marriage] is to advance much in the near future, it will probably have to come legislatively.” This has not stopped, however, those gay couples who want marriage from finding it somehow. Including one of my favorite bloggers, the generally libertarian-conservative and observant Roman Catholic Andrew Sullivan, who exchanged romantic, yet mature, vows with his partner Aaron Tone last month. (Congratulations to Messrs. Sullivan and Tone, by the way.) Prof. Carpenter is probably right – the courts do not seem anxious to step in to this issue and risk the significant loss of popular support that would inevitably come with it. That’s too bad, I think. Courts need to be politically courageous and make their decisions based on a principled vision of the law and not on the face of popular pressure. If there is an overwhelming democratic rejection of the court’s ruling, the democratic process can step in and overrule the court, in any of a number of ways. I’ve looked at the issue a lot of different ways and I can’t find a principled reason to withhold marriage from same-sex couples if it’s given to opposite-sex couples. Opponents of same-sex marriage, please recall that I have stated, many times, that I have yet to hear a same-sex marriage advocate explain why a “civil union” that is the legal equivalent of marriage would not satisfy the government’s obligation of equal protection.
But, if the issue is to be one to be resolved through the democratic process, by convincing legislators that there is popular support for the idea of same-sex marriage, then the strong advocates of the idea need to get their forces mobilized and rallied. They will have a tough road to hoe, for a lot of reasons, and will probably a generation-long struggle to make it happen. It is probably a better way to go, anyway – it’s much more difficult for an opponent of same-sex marriage to argue with the result of a democratic process and it would deny politicians the right to hide behind popular opinion should the legislative process produce a same-sex marriage bill anyway.
