The legal case for allowing gay marriage is as clear as the moral one is urgent
APRIL DEBOER and Jayne Rowse have lived together for ten years and want to get hitched. However, the state of Michigan, where they live, won’t let them. So they cannot formally adopt each other’s children and there is no guarantee, if one of them dies, that the rest of the family will be allowed to stay together. Another gay couple, Ijpe DeKoe and Thomas Kostura, were married in New York. But after Mr DeKoe, a soldier, finished serving in Afghanistan, the couple moved to Tennessee, which does not recognise their union. Both couples are suing to have their states’ bans on same-sex marriage struck down. The case, named Obergefell v Hodges, reached America’s Supreme Court on April 28th (see article). Many expect the justices to make gay marriage legal throughout America.
That would be a slap in the face of democracy, some say. Marriage has long been a matter for the states to regulate, not the federal government. In several liberal states lawmakers have given the go-ahead to same-sex unions; in conservative states they have not. If voters do not like this outcome, they are free to elect different politicians. If advocates of gay marriage want to rewrite the rules of an ancient institution in Michigan or Tennessee, they should persuade Michiganders and Tennesseans of the justice of their cause, rather than relying on the courts to overrule the will of the people.
This is not a foolish argument. In general, big social controversies are better settled democratically than by judicial fiat. However, the court’s first duty is to uphold the constitution, which means striking down laws that violate it. It has sometimes overstepped its authority. In 1973, for example, when abortion was legal in some states but not in others, the court ruled in Roe v Wade that it should be legal everywhere, citing a right to privacy that is nowhere mentioned in the constitution. This newspaper favours legal abortion, but in Roe the justices invented the law rather than interpreting it, substituting their preferences for those of voters. That power-grab has poisoned the debate on abortion in America ever since.
Opponents of same-sex marriage worry that the court is planning to do the same thing again. But Obergefell v Hodges is not like Roe v Wade; it is more like Brown v Board of Education (which barred racial segregation in schools in 1954) or Loving v Virginia (which struck down state bans on interracial marriage in 1967). The constitution says that no state may “deny to any person within its jurisdiction the equal protection of the laws”. Limiting marriage to heterosexuals plainly denies such equality to gay people. So the court should strike down all remaining bans on same-sex marriage. The legal case is clear. The moral one is compelling.
Same-sex states: America’s increasing acceptance, in graphics
Traditionalists will certainly object. But the backlash will be nothing like as severe or long-lasting as the one that followed Roe v Wade. (To this day, no candidate can win the Republican presidential nomination without swearing to appoint judges who will try to overturn that decision.) Same-sex marriage is not like abortion. There are no difficult trade-offs: allowing gay couples to wed has no effect on the health or stability of heterosexual unions. And there are no victims: anti-abortion campaigners can wave placards showing bloody fetuses, but campaigners against gay marriage will struggle to find anyone who has been harmed by it.
The right to be smug and boring
Some Republicans in Congress are threatening to cut funds for any federal enforcement of a court ruling they do not like, but they will not get far. Indeed, many in their party will be glad to see the issue taken out of their hands, for they know this is a battle they will lose sooner or later. Public opinion has changed fast, and in a relentlessly liberal direction. The most religious and conservative states are now less hostile to gay marriage than the most secular, liberal ones were a decade ago. The justices will no doubt have an eye on history as they deliberate. With luck, they will reach a decision they will not be ashamed to explain to their grandchildren.
This article appeared in the Leaders section of the print edition under the headline "Bless it"
