Flatiron Hot! Pundit: The Case for Judicial Restraint on Gay Marriage
Proponents of marriage equality were understandably jubilant when the Supreme Court announced that it would rule on the legitimacy of same-sex nuptials. The willingness of the highest court in the land to take on gay marriage represents a victory for activists who have fought for years to acquire a right that all people should have: to enter into a culturally and legally-vital contract with a partner of their choice. Proposition 8 and the Defense of Marriage Act (DOMA) are unconstitutional and immoral, and liberals are rightfully calling for the Supreme Court to recognize them as such.
However, there are risks inherent in taking such a politically charged issue to the Supreme Court, some of which have been widely discussed in media coverage of the announcement, and others that have received less attention.
The most obvious danger is that the Supreme Court will issue a federal ruling against marriage equality, invalidating laws in the states where it is legal. Fortunately, this scenario is highly unlikely. A full-scale rejection of gay marriage would set off a high-profile legal clash between the federal government and the sates that have already approved gay marriage, further undermining the Supreme Court’s already abysmal reputation.
Conservative Chief Justice John Roberts’ decision to uphold Obamacare despite his personal position on the matter may to indicate that even what is perhaps the most ideological Supreme Court in history places some value on protecting its institutional legitimacy. The flip side of this is that a full endorsement of marriage equality nationwide is equally unlikely.
Most experts expect that the Supreme Court will rule narrowly, upholding gay marriage where it already exists, but leaving the door open for undecided states to deal with the thorny issue as they see fit. Such a ruling is bound to disappoint some who favor marriage equality.
However, judging by past precedent, a narrow ruling might ultimately be for the best. History bears out that judicial actions perceived as circumventing the will of the people can result in un-intended blowback.
Therefore, even the strongest proponents of marriage equality should think very carefully before endorsing a wide-reaching decision in favor of gay marriage. If the 20th century is any indication, controversial rulings are often detrimental to liberal causes. The most famous example is Roe v. Wade, often credited with sparking the culture wars as they are currently understood.
To be sure, the Berger Court’s decision accomplished a great deal of good, helping to mitigate the stigma associated with abortion and making it more easily accessible in pro-choice states.
On the other hand, it served to provoke a reaction that has been at least as detrimental to women, sparking a robust “pro-life” movement. While it is safe to say that social conservatives pre-Roe were not supportive of a woman’s right to choose, abortion did not become a centerpiece of the G.O.P. agenda until the Supreme Court ruled in its favor, sparking allegations of “judicial activism” from the right.
Following Roe’s passage, a combination of opportunists and ideologues conspired to politicize the issue, setting in motion a radicalization of the Republican Party on social issues that has culminated in today’s political reality, in which opposition to abortion is a litmus test for virtually all Republicans who seek office (exceptions in blue states notwithstanding).
Citizens that never gave much thought to abortion pre-Roe suddenly felt as if their traditional way of life was under attack by pointy-headed liberals in Washington. In a sense, they were correct.
The right’s sudden elevation of abortion to the top of its agenda just so happened to coincide with an emerging narrative, long held by movement conservatives, but not the G.O.P. establishment, that “big government” poses a threat to individual liberty and that the primary role of politicians should be to hinder its operation. This paranoia helped form the glue that holds the modern Republican Party together.
Conservatives continue to cite Roe as a travesty, an example of government infringing on religious freedom. But in a sense, it was a tremendous gift, without which evangelical Christians and other religious fundamentalists, vital components of the G.O.P. constituency, may not have become politicized to the extent that they have.
Roe v. Wade, in conjunction with other judicial rulings and progressive government initiatives such as the Equal Rights Amendment (ERA), mobilized an army of religious zealots that have inflicted considerable damage to causes progressives hold dear.
A nationwide ratification of gay marriage risks giving new life to a social conservative movement that appears to be on the ropes. Recent statements from social conservatives like Todd “legitimate rape” Aikin and Richard Mourdock have done severe damage to the brand, revealing the so-called arbiters of traditional morality for what they are and, perhaps, playing a role in Obama’s electoral victory. All in all, there is something to be said for letting politicized social conservatism die a natural death.
With more Americans coming out in favor of same-sex marriage every year – particularly young people – it might be best to let history play out, even if it means waiting longer for gay marriage to be ratified on a state-by-state basis.
Let the die-hard defenders of “traditional morality” continue to alienate Americans with their mean-spirited bigotry while progressives focus on changing hearts and minds with the logic and righteousness of the argument, rather than relying on judicial decrees.
The Supreme Court should absolutely strike down the abominations that are Proposition 8 and the Defense of Marriage Act, but going beyond that could well prove counterproductive.