Earlier in this century, Judge Learned Hand decried conservative judges who used the Constitution's "due process" guarantee to strike down economic legislation they disliked. This temperate man even suggested repeal of the "due process" provisions of the U.S. and state constitutions, or that a two-thirds majority of the Supreme Court be required to declare a law unconstitutional on due process grounds.
Today the consensus-building processes of democratic persuasion are again threatened by judicial abuses, this time of the "equal protection of the laws" guarantee in the U.S. and state constitutions. In Hawaii, judges seem likely to tickle from their state constitution's "equal protection" clause a right to contract same-sex marriages. Such a judicial preemption of political deliberation would come at a moment when that deliberation is being enriched by some thoughtful homosexual advocacy of same-sex marriage.
Serious arguments for such marriages, although not ultimately persuasive, merit political debate and legislative judgments on their merits. They should not be rendered irrelevant by some court's epiphany concerning a hitherto undetected constitutional right.
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An example of the formidable advocacy of same-sex marriage is Jonathan Rauch's essay in the May 6 issue of the New Republic, wherein he concludes that the most important arguments for heterosexual marriage also justify homosexual marriage. Rauch, who is homosexual, comes to that conclusion with reasoning more nuanced than the syllogistic argument favored by many homosexual rights advocates: Marriage is for people who love, homosexuals love, therefore marriage is for them.
Rauch concedes that there is a burden of proof on those who, like himself, propose to change a settled practice of many cultures, religions and centuries. But, he notes, the burden has been successfully dispatched by opponents of such settled practices as slavery, segregation and anti-miscegenation laws.
And, he asks, how settled is marriage? Traditions have relatively recently been unsettled by laws allowing women to own property independently of their husbands and to charge their husbands with rape. Will the institution of marriage, which has been manifestly unsettled by society's sudden embrace of no-fault divorce, be comparably unsettled by making marriage a status for which the homosexual 3 to 5 percent of the population is eligible?
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An incapacity to have children cannot, any more than an unwillingness to have children, establish ineligibility, otherwise sterile men, postmenopausal women and couples uninterested in child rearing would be ineligible. In a secular setting, such as American lawmaking, a sufficient justification of marriage, says Rauch, is its utility in "taming," "domesticating," "civilizing" men, who arguably are not naturally monogamous. Another sufficient justification is to formalize the caretaking necessitated by life's vicissitudes and old age. Both justifications pertain to homosexuals.
Share this articleShareVulnerabilities of Rauch's argument include: Same-sex marriage might aggravate the trivialization of marriage as a mere "lifestyle choice" or a mere means of acquiring benefits from employers and the welfare state. And Rauch does not adequately adumbrate a principle by which polygamy can be proscribed if marriage is justified in terms of the fact of loving commitment and the functions of taming and caretaking.
Furthermore, it is a mere hypothesis, and a dubious one, that same-sex marriage would have the domesticating effect associated with heterosexual marriage. Same-sex marriages would lack a central component of domesticity: offspring.
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Rauch writes that "heterosexual society would rightly feel betrayed if, after legalization, homosexuals treated marriage as a minority taste rather than as a core institution of life." The betrayal might be more profound than that. Andrew Sullivan, a homosexual advocating same-sex marriage in his book "Virtually Normal," casually writes that homosexual relationships may have facets that could "nourish the broader society," such as "greater understanding of the need for extramarital outlets." Sullivan writes that "the lack of children gives gay couples greater freedom." But marriage is more about responsibility than freedom. Why call what Sullivan wants, with its "outlets," marriage?
Whatever conclusion America comes to, it should reach by political debates that are resolved in representative institutions. The alternative is too costly.
Before the Supreme Court in 1973 arrogated to itself the setting of abortion policy, a vigorous national debate was underway, and many states were modifying abortion laws. The abrupt truncation of that democratic process by judges wielding a newly discovered "fundamental" right contributed to the embitterment of politics.
Worse will come if another eruption of judicial authoritarianism similarly shoves representative institutions away from the shaping of policy regarding marriage. Surely judges should heed Learned Hand's warning against "anticipating a doctrine which may be in the womb of time, but whose birth is distant."
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