Marriage Amendment
August 25th, 2008
From an article written by Robert T Miller, in light of the recent ruling on gay marriage in California.
My knee-jerk reaction to most people who push for a Constitutional amendment about marriage has been negative, but I think Miller makes a strong case, no matter what your views on the topic are. Salient points distilled below, courtesy of my friend Steven Cooper. Tacked on some further thoughts at the end, based on discussions with Steven.
- …if the matter is not constitutionalized through the amendment process, it will be constitutionalized by the courts of the Commonwealth. This is not because we have an “activist” judiciary. It is because courts are required to decide the cases that come before them, and which cases come before a court depends not on the court but on whether a private party decides to bring a lawsuit.
- …the next question is why the constitutionalization should be accomplished through the amendment process. After all, most questions of constitutional law are settled by the courts, and by and large the courts of the Commonwealth do a very good job of settling such questions. If this issue concerning marriage is to be constitutionalized, there is a real question as to whether it should be constitutionalized through the amendment process or through adjudication in the [California] Supreme Court.
- What is important is that I recognize, and I think any honest person who looks at the arguments has to recognize, that the issues surrounding same-sex marriage are both very complicated and very deep. Any definitive view of the matter requires that a person, at least implicitly, take positions on any number of moral, philosophical, political, sociological, and empirical questions. As I consider these matters, my overwhelming impression is that the only thing obvious and certain about the question of same-sex marriage is that reasonable people can in perfect good faith disagree about this question.
- …if resolving the issue of whether the state should recognize same-sex marriages or the equivalent requires us to make many difficult judgments in, among other areas, morality, philosophy, and politics, and if the question is one about which reasonable people can disagree in good faith, then it is clear to me that the issue is not one that should be resolved by courts.
- Courts are composed of judges, and judges are lawyers, and lawyers have expertise in the law. Legal knowledge and legal skills of the kind we convey in law schools will not resolve deep moral, philosophical, and political issues like those involved in the same-sex marriage dispute. The issues involved in same-sex marriage are much bigger than legal issues. They touch on profound questions such as the foundations of morality and meta-ethics, the relationship between the individual and the state, and the meaning of human sexuality. Lawyers, even judges, are no better than anyone else in forming opinions on such profound questions. In fact, on average, lawyers may even be worse than other people in dealing with such questions, for lawyers are often tempted to apply legal methods, at which they are adept, to philosophical problems, for which such methods are necessarily inadequate.
- In a democratic society, these great questions of social policy about which reasonable people can and will disagree should not be settled in an authoritarian way. In a democratic society, these great questions of social policy can be settled only by the people themselves through democratic procedures—that is, by voting. The majority wins, which contributes to social peace, and the minority has not only the consolation of having had a fair opportunity to make its case but also the possibility of returning and prevailing in a subsequent vote. It loses, but only for today. As Lincoln said in his first inaugural address, “[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
- Accordingly, the constitutionalization of the question of same-sex marriage should be settled not by the courts of the Commonwealth but by the people themselves.
[Further thoughts:]
I think this is right. It seems that in a pluralistic society, a vote is not just the best way to go about this, but it also seems like the Christian way to do it. Even if the judiciary were packed with judges who agreed with my own personal convictions on this issue, I think it’s healthiest to the common good for the precedent to be set that these issues be determined by vote. Voting puts the onus on all to convince others of their view. This invites the most people to pursue their desired ends along the road of persuasion, not force—either physical or judicial.
