Overreaching on Gay Marriage

Voters should decide the future of same-sex marriage-not federal judges.


What the federal court decision in favor of same-sex marriage will do for gay couples and their children is heartening and welcome. What it will do for our law and politics—well, that's a different story, and a dismal one.

If I favored a constitutional amendment banning gay marriage, I would have considered Wednesday a very good day. When a judge in California found that same-sex couples have a right to wed, he cemented the widespread notion that the courts are out of control and that the Constitution means whatever judges want it to mean. The verdict will go far to energize and expand opposition to gay rights, at a time when they were on the rise.

Let me be clear: Had I been a Californian, I would have voted against Proposition 8, which banned gay marriage. I would like all 50 states and the federal government to grant same-sex couples access to marriage. But it would be far better for that change to come from elected institutions than from the courts.

U.S. District Judge Vaughn Walker struck down Proposition 8 because it "fails to advance any rational basis for singling out gay men and lesbians for denial of a marriage license." But it's silly to believe only nut jobs and bigots could rationally oppose same-sex marriage, or that millions of Californians who accept other laws protecting gays were acting irrationally.

They might reasonably fear that in some subtle way, the legalization of gay marriage may gradually weaken the appeal of marriage among heterosexuals. They might think it will modestly increase out-of-wedlock childbearing. They might believe our understanding of the possible repercussions is so limited that we shouldn't tinker with an age-old institution in this way.

Are those concerns persuasive? Not to me. But they are plausible enough to contradict Walker's assertion that the only real justification for the ban is "the notion that opposite-sex couples are superior to same-sex couples."

Most people and judges agree that the Constitution doesn't allow the government to outlaw interracial marriage. Most would also say the Constitution does allow the government to outlaw polygamous marriage. Those who applaud this ruling should ask themselves: Would they feel the same way if the court had ruled in favor of polygamy?

The same arguments, after all, apply in both realms. The judge said authorizing same-sex marriage would further social goals like fostering stable relationships, protecting children, and allowing adults to follow their natural sexual desires. Ditto for permitting polygamy.

The ban prevents the polygamous from marrying their chosen partners just as the prohibition of same-sex marriage deprives gays of that freedom. Josh can't marry Zack; Michael can't marry Katie and Nicole. If the right to marry encompasses the former, why not the latter?

Gays argue, correctly, that they can't be expected to change their inborn sexual orientation to get married. But polygamists can assert that monogamy is impossible for them—and, judging from the prevalence of sexual infidelity, for most people.

Nor does the polygamy ban solve any problems. Men can already have sex with multiple females, produce offspring with them, and furnish them with financial support. Former NFL running back Travis Henry has nine children by nine different women.

Prohibiting polygamy does nothing to prevent such conduct. It just keeps people who want to do it responsibly from operating within an established legal framework.

That's why I would legalize polygamy as well as same-sex marriage. But it's one thing to believe those changes would make sound policy and entirely another to think that the Constitution requires either—especially when California, which passed Proposition 8, has granted gay couples access to most of the rights afforded by marriage.

The decision may very well lead the Supreme Court to rule in favor of same-sex marriage. If so, it would be the most polarizing decision since Roe v. Wade in 1973, which we are still fighting about.

It would spark a furious backlash from Americans who, whatever their views about homosexuality, think such decisions belong with them and their elected representatives. It could even lead to a constitutional amendment overturning the decision.

Thanks to Judge Walker, the debate is no longer about whether gays deserve protection from the law, a debate they were steadily winning. It is more about whether democratic processes should be trusted to resolve the question. That's a debate they are likely to lose.