In an interview during the 2012 election season, a prominent American politician spoke highly of advocates of traditional marriage. They are motivated by an impulse to “preserve and strengthen families,” he said.
He avoided framing the debate over gay marriage as a civil rights issue, calling it instead a disagreement over “what the word ‘marriage’ should mean.”
More than once, he endorsed the argument that gay marriage foes will make before the Supreme Court this March — that there is no federal constitutional right to gay marriage. “I think it is a mistake to try to make what has traditionally been a state issue into a national issue,” he said.
The views expressed by this politician — who, by the way, happens to be Barack Obama, speaking in the interview in which he became the first president to back gay marriage — seem to no longer be popular among gay rights advocates.
As the constitutional challenge to Proposition 8, California’s 2008 ban on same-sex marriage, hurtles toward the Supreme Court, progressives have increasingly called for the justices to legalize gay marriage in all 50 states by judicial fiat.
This would be a terrible mistake. Even those of us — myself included — who back gay marriage legalization should recognize, as the president did, that this issue is not one that should be resolved by the Supreme Court — or, more precisely, by Justice Anthony Kennedy, America’s de facto philosopher king.
Consider the state of the same-sex marriage movement. Conservative attorney Paul Clement has been mocked for writing in a brief that “gays and lesbians … have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.” But on that point, at least, he’s right, and it’s a testament to the strength of the appeals they have made to the public and the worthiness of their cause.
A majority of Americans now support gay marriage, up from about a third 10 years ago. That includes almost two in three young voters but a minority of seniors — as George Will has said, “Quite literally, the opposition to gay marriage is dying.” In 2012, gay marriage advocates won all four state referenda on ballots across the country. The question isn’t whether gay marriage will become legal — only how.
One problem with a sweeping judicial decree is that it could erode the enormous progress gay marriage advocates have earned with the public over the past decade. The Prop. 8 case could suffer the same fate as Roe v. Wade, which Justice Ruth Bader Ginsburg— hardly a reactionary — said, “halted a political process that was moving in a reform direction and thereby … prolonged divisiveness and deferred stable settlement of the issue.”
The type of ruling for which proponents are agitating would effectively require the justices to find that Prop. 8 “can be explained only as designed to dishonor gays and lesbians as a class.” Such a declaration by the Supreme Court would play into one of the most destructive characteristics of our politics: the tendency of partisans to insist that their opponents are driven by sinister, ulterior motives.
The right suggests that a more progressive tax code is “class warfare” or that modest gun control proposals are just the beginning of a sweeping effort to confiscate all guns. To some on the left, meanwhile, any effort to restrict abortion is part of a misogynistic “war on women,” deficit reduction is always a convenient cover for those who would allow poor children and the elderly to starve — and skepticism of gay marriage can only represent undiluted bigotry and hate.
It is impossible to debate any issue on its merits when you believe you are the only one negotiating in good faith. The fact is that while some of the remaining opposition to gay marriage is colored by homophobia, people of good will can come to different conclusions about the issue, as President Obama eloquently acknowledged.
The argument, as columnist Ross Douthat put it, that heterosexual monogamy “can offer something distinctive and remarkable — a microcosm of civilization, and an organic connection between human generations — that makes it worthy of distinctive recognition” may be unpersuasive or outweighed by other considerations. But it deserves our respect nonetheless.
A sweeping gay marriage ruling, by suggesting that gay marriage opponents are necessarily bigoted, would in a sense represent the Supreme Court’s endorsement of the toxic moral absolutism that pervades our politics. Moral absolutism is the enemy of compromise. It hardens political divisions and reduces the public’s willingness to recognize complexity and nuance.
As gay marriage activist Jonathan Rauch wrote, “Real civil rights … come from consensus, not from courts.” This is especially true for marriage, an institution “that takes place not just in the eyes of law but in the eyes of the community.”
I oppose Prop. 8, but the justices should let it stand. We’ll repeal it in 2014 by appealing to the decency and common sense of our fellow citizens.
Jason Willick is the assistant opinion page editor. Contact him at [email protected] or on Twitter: @jawillick.