Who should decide same-sex marriage, judges or voters?

Posted at 5:18 PM, Nov 07, 2014

A federal appeals court Thursday upheld bans on same-sex marriage in four states, breaking paths with several other appeals that have reversed such bans. 

Supreme Court watchers say the ruling is likely to be a good thing for backers of same-sex marriage in the end, because it virtually guarantees the Supreme Court will have to make a definitive ruling soon. (There’s a good, concise summary of the case here.)

The opinions in the case, I think, are worth highlighting at some length. They contain some plainspoken arguments about democracy and who should decide questions such as same-sex marriage. Maybe too philosophic. The dissent, written by Senior Judge Martha Craig Daughtrey, uses unusually spicy language to condemn the majority opinion as sophomoric:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism.

The author of that majority opinion, Judge Jeffrey Sutton, a conservative appointed by President George W. Bush, basically rejects every legal argument upholding same-sex marriage that other federal judges have accepted. His basic argument is that the people, not judges, should decide the issue and it should be decided slowly because it alters such an ancient practice.

On the first point, Sutton writes:

This is a case about change—and how best to handle it under the United States Constitution. From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen. That would not have seemed likely as recently as a dozen years ago. For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world.

But things change, sometimes quickly. Since 2003, nineteen States and the District of Columbia have expanded the definition of marriage to include gay couples, some through state legislation, some through initiatives of the people, some through state court decisions, and some through the actions of state governors and attorneys general who opted not to appeal adverse court decisions. Nor does this momentum show any signs of slowing. Twelve of the nineteen States that now recognize gay marriage did so in the last couple of years. On top of that, four federal courts of appeals have compelled several other States to permit same-sex marriages under the Fourteenth Amendment….

Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?

Sutton is clear in what he thinks. He writes, “The question demands an answer—but from elected legislators, not life-tenured judges.”

Society, Sutton writes, invoking the conservative philosopher Edmund Burke, needs to move slowly:

How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage? A State still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere. Even today, the only thing anyone knows for sure about the long-term impact of redefining marriage is that they do not know. A Burkean sense of caution does not violate the Fourteenth Amendment, least of all when measured by a timeline less than a dozen years long and when assessed by a system of government designed to foster step-by-step, not sudden winner-take-all, innovations to policy problems.

Sutton ends with a strange ode to the vox populi:

In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

A federal appeals court decision overruling a same-sex marriage ban gives a terse rebuttal worth noting here: “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”

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