“. . . if the Supreme Court does with marriage what it did on abortion, which is to impose the laws of New York and Massachusetts . . . on the rest of the country by judicial fiat, it will make this issue more divisive and contentious, not less so.”
— Ralph Reed, founder, Faith and Freedom Coalition
In January — 40 years after Roe v. Wade — thousands of demonstrators descended on Washington, D.C,. as part of the March for Life Rally. Might we see similar demonstrations in 2053 protesting same-sex unions?
Not a chance.
The US Supreme Court today hears oral arguments on two gay marriage cases, the final chapter — perhaps — of a book begun a decade ago in Massachusetts. In 2003, the Bay State’s highest court concluded gay couples had the right to marry. This year that idea may become the law of the land.
If so, however, same-sex marriage won’t become a wedge issue as did abortion. Reed’s prediction is grounded in two false premises. One is that same-sex marriage is akin to abortion: deeply controversial, inherently unresolvable. The second is that it is better to let the political process, not the courts, decide the matter.
Abortion is different from same-sex marriage and remains deeply troublesome precisely because there are few who think the act itself — killing a fetus — is a good thing in and of itself. One can argue (as pro-choice supporters do) that decisions about pregnancy should be left up to a woman and still recognize abortion has a moral cost. But it’s hard to see the moral cost of same-sex marriage. Actually, it seems a moral good.
Same-sex marriage, obviously, doesn’t involve any destruction of potential life. And while there are some who argue that permitting gays to marry hurts traditional marriage, the data from states with same-sex marriage don’t bear that out. Divorce rates in Massachusetts, for instance, have declined in the last 10 years. In fact, far from undermining marriage, the battle for same-sex marriage really is an affirmation of its importance. Why fight for something unless you think it has great value?
Meanwhile, the good that marriage creates is quite striking. Marriage is a building block of society, an inherently conservative institution. Long-term coupled relationships create a healthy environment in which to raise children, they reduce poverty by allowing two people to provide mutual support to each other, and they help create strong and stable communities. None of that changes just because the couple involved is of the same sex.
One can agree with all this and still wonder whether it might be better for the courts to stay out of the matter. A judicial decision is anti-democratic, forcing a result many oppose. Again, Roe v. Wade is held out as an example of that. The legislative process, on the other hand, allows people to air their disagreements and build compromise, ultimately coming to a consensus.
Compromise is a great tactic for creating a budget, but much less so when it comes to matters of human rights. And in any event, unlike abortion, gay marriage is not an issue that divides the nation. If the court strikes down DOMA — the Defense of Marriage Act — it will be following public opinion, not taking the lead.
That wasn’t the case when the Massachusetts court ruled 10 years ago. Back then, just 37 percent favored same-sex marriage. Today, however, the mood has shifted. A Washington Post-ABC News poll out this month found a strong majority of Americans now in support. Particularly striking is that the level of approval climbs to 81 percent among those ages 18 to 29. As the years pass and those folks age, support for gay unions will become almost unanimous.
My guess is that the political fallout from a Supreme Court decision sanctioning same-sex marriage will be less like Roe v. Wade and more like Loving v. Virginia, the (beautifully named) 1967 court decision that said marriage couldn’t be denied to people of different races. Few protested that decision and, today, few would disagree. Indeed, if 40 years from now there are to be protests over gay marriage, they’ll likely happen only because the Supreme Court somehow keeps laws like DOMA in place.