Supporting Gay Marriage; Not Comfortable With SCOTUS Ruling on Issue
But if a disorganized thing here, but I have a ton of stuff going on later today that I'm preparing for. Still wanted to quickly riff (rant?) on the issue a bit. Fuzzy has brought up some particular reasons why the Supreme Court's decision not to hear gay marriage cases could result in much narrower rulings than are anticipated.
But let's assume for a moment that the Court is preparing to make a broad ruling over whether it violates the constitution to prohibit gay marriage. I slept on it a bit and -- as a supporter of legal gay marriage -- I'm finding myself uncomfortable with the idea, especially in this current environment.
I think my discomfort breaks-down to two reasons-
Democratic process- In the last round of elections in the US, four states (Maine, Maryland, Minnesota and Washington) held referendums that legalized gay marriage in those states. They effectively doubled the number of states that allow same sex couplings in their legal systems (some states call them Civil Unions). While the struggle has been long and hard, the progress over the past decade has been rather dramatic. There have been numerous ballot-box losses on this issue, but the tide is turning.
I can't help seeing this and and say that the democratic process is working as its supposed to. This issue has been debated in the media and by politicians for years now. After organizing and persuading, the supporters of gay marriage have reached a critical amount of momentum. In several states, people have had to sit in a voting booth (or legislators have had to sit on the issue) and really think about how they felt before pushing a button. In some cases, voters have voted against gay marriage. But those voters seem to be quickly losing ground.
This makes the use of the courts an uncomfortable venue to have a fight over this. Courts don't operate in a political vacuum, and pursuing a court resolution seems like something of a cop-out compared to pursuing more legislative victories by continuing the conversation. For those who remain "unconverted", a Supreme Court victory basically ends that conversation. Gay marriage ceases to become an issue that's been decided by popular majorities, and becomes yet another liberal agenda item imposed by the courts. In other words, this becomes an issue that is fought over, but not actually argued. And it simply vests even more power in the hands of judges over an issue that was previously making its way through the political process.
The proliferation of rights- It's hard not to sound somehow disparaging of the term "gay rights", because I do believe there are such a thing as gay rights. But I have a deep-seated discomfort with expansive definitions of constitutional rights within nation-states. Maybe this is a specifically American approach, but I prefer a system of "rights" that outlines what the government may not do to give civil society a chance to pursue its own path. I do not like a system where the government is forced to recognize an ever-expanding roster of "rights".
Over the past few years, I've heard an uncomfortable number of people argue for "rights" to nonsense things like "free Internet" and other idiocy. Gay marriage is far from a stupid thing. But I'm also not sure it rises to the level of a right -- and for the record, I don't think legal recognition of heterosexual marriage is a right either.
One could argue that the Supreme Court isn't possibly going to find a "right" to gay marriage, but rather it is going to rule that prohibiting certain marriages violates equal protection clauses in our constitution. Nonetheless, basically everyone is going to walk into/away from this case acting as if its about whether gays have a constitutional right to marry. I'm not sure that's a healthy approach for governance.