If I were Benevolent Dictator I'd legalize same-sex marriage. The moral argument for doing so is overwhelming, and the public policy argument is nearly as strong. Apart from offending people who find homosexuality to be upsetting, it's hard to see the downside of allowing two people to marry each other.
But I'm not Benevolent Dictator. And neither is the US Supreme Court. And so there's a part of me that wonders if hoped for rulings striking down both Prop 8 and DOMA should really be hoped for?
Justice Samuel Alito declared that same-sex marriage ... should be left to the voters. “On a question like that, of such fundamental importance,” he said, “why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?”
Legally, I think that's a stupid argument. The Constitution is the Constitution. If the right exists, the right exists, regardless of what the people say at the polls. And morally, yeah, I'm disturbed at the notion of subjecting the civil rights of any minority to the whims of a popular vote.
But politically, well, I worry that a court decision undermining the constitutionality of gay marriage bans could also undermine the extraordinary progress that is being made toward public acceptance of gay marriage. Think Roe v. Wade.
By the time Roe was decided in 1973, our nation was well on its way along the long arc toward liberalizing our abortion laws through the political process. Washington State, for example, had legalized abortion via citizen initiative in 1970. But it's fair to wonder if the sweeping Roe decision ended up preempting that political process? Reproductive rights advocates have been on the legal and political defensive almost since the day the Roe opinion was published. Forty years later, throughout much of the nation, the right to a legal and safe abortion may soon hang on the opinion of a single swing (though conservative) justice.
If not for Roe, progress toward reproductive rights would have surely been slower and more haphazard. But ground won through political persuasion might also have been more securely held. Fought at the ballot box instead of in the courts, Abortion is an issue that might have been settled for good 20 or 30 years ago, instead of one that continues to be viciously fought to this very day. You know, maybe. It's an argument that I've heard others make that I find intriguing, if not entirely convincing.
It's also an argument that I would have been reluctant to apply to marriage equality just five years ago, when public opinion was still so decidedly against righting this wrong. But the shift in public opinion since then has been so astounding that the attainment of full marriage equality through the political process now seems all but inevitable. We don't need the courts to overturn Prop 8 and repeal DOMA. Public opinion eventually will. And if by leaving this progress to the political process we end up more permanently changing American attitudes toward marriage equality, wouldn't that be worth the wait?