Apropos of the Massachusetts Supreme Court’s latest salvo in the Bay State’s same-sex marriage war, I suppose I should have something to say about the topic.
From a sort of policy-wonkish point of view, I tend to agree with Steven Taylor that it’s probably going to affect the presidential campaign in all sorts of nasty ways—not just because it raises the stakes by virtually ensuring there will be a DOMA challenge sometime during the election season, but also because it makes the ongoing judicial nominations battle even more intense, especially since this natural court* is waaaay overdue for someone to either retire or kick the bucket.
From the point of view of being someone who believes in democratic accountability, the idea of four justices in Massachusetts deciding the issue of same-sex marriage—based on their own state constitution alone, mind you—for the rest of the country is profoundly disturbing. The comparison to Loving v. Virginia (388 US 1; 1967) doesn’t wash, because that case was a decision reached by the U.S. Supreme Court. In practice, of course, much economic regulation is carried out this way—the product liability standards of the most plaintiff-friendly jurisdiction in Mississippi are de facto the product liability standards of the nation. That doesn’t mean I have to particularly care for its extension into other areas of law.
On the other hand, though, there’s a great deal of legislation that is outmoded, overly intrusive, or downright pure garbage on the books—and legislatures full of spineless creatures who are loath to stand up to excise these laws from the statute books. Sure, they could do the right thing and repeal Mississippi’s idiotic law that makes cohabitation by unmarried couples illegal (you can go to jail for six months), but why risk grief from Donald Wildmon and his dwindling band of morals police? These laws may be “uncommonly silly,” to borrow from Justice Thomas’ dissent in Lawrence v. Texas, but that silliness was obviously not evident enough to the Texas legislature for that state’s sodomy statute to be repealed. And, in the meantime, people go to jail or are fined on the basis of a law that most observers would concede is “uncommonly silly.” Ends do not justify means, but neither do means inherently justify ends.
Now, unlike the aforementioned cohabitation statute, or Texas’ sodomy statute, prohibitions against same-sex marriage are not necessarily “uncommonly silly.” They may not even be silly. If you’re someone concerned about the free association and free exercise rights of coreligionists, you might reasonably conclude that legalization of same-sex marriage might soon lead to judicial requirements that a church perform the sacraments of marriage for same-sex couples, even if such sacraments would be contrary to its doctrine. Marriage remains an important institution to millions of Americans; for every Britney Spears or J-Lo who makes a mockery of the institution, there are thousands of responsible, but sometimes imperfect, people who make their best effort to uphold it. It is not an institution to be altered lightly.
Nor do I personally find outcome-based arguments in favor of (or for that matter, in opposition to) same-sex marriage persuasive. As a matter of principle, I believe fundamental liberties should not be subject to cost-benefit analysis. Questions of whether gay marriage will “civilize homosexual men” or lead to higher divorce rates miss the point.
In the end, I don’t have an easy answer. My gut feeling, proponent of individual liberty that I am, is that if two people want to be married and they are consenting adults, that’s just fine with me. But I can see where reasonable people can differ, and I don’t know what I could say to make them think differently.
* A “natural court” is a period during which the Supreme Court’s membership doesn’t change. The current “natural court” began when Stephen Breyer replaced Harry Blackmun in 1994.