Forty years ago, the U.S. Supreme Court overrode the laws of 50 states and thousands of years of cultural and religious tradition when it discovered the right to abortion in the “penumbras, formed by emanations” from the Constitution.
Americans have been arguing about abortion ever since – with most of the energy in recent years seeming to emanate from the pro-life side.
Whether a similarly divisive legacy will result from two landmark gay-rights cases now before the court remains to be seen, but the aftermath of Roe vs. Wade should sober anyone na´ve enough to believe that the tension between intractable theological beliefs and evolving moral, political and legal standards can be brought to an immediate, permanent and peaceful conclusion by nine unelected judges.
The court this week heard oral arguments in two related but very different cases: one challenging the constitutionality of California's five-year-old voter-approved ban on gay marriage and the other seeking to overturn the law that denies federal benefits to legally married same-sex couples.
The cases pose a constitutional Catch-22 for people on both sides of the debate, because the supportive arguments contradict each other. If, as some insist, the legality of same-sex marriage should be left to the states under the 10th Amendment, by what right would the federal government deny the legitimacy of such unions? On the other hand, if Washington does indeed have such authority, on what basis can opponents of the Defense of Marriage Act seek its repeal?
So as abortion-rights supporters did four decades ago, advocates of gay rights this week asked the court to short-circuit a debate that should be resolved by time and the political process – a potentially short-sighted goal if national opinion is indeed shifting in their direction, since even a sympathetic cause can invite a backlash if its tactics are considered heavy handed.
Unlike abortion, which resists compromise because it involves the termination of (at the very least) potential human life, the gay-rights debate need not be as polarizing as it has become. Those who on the basis of the Bible or other religious texts consider homosexual behavior morally wrong should be willing to grant respect and some degree of legal protection to the other side, just as same-sex advocates should be willing to respect longstanding and constitutionally protected religious tradition without resorting to name-calling.
The solution can be found in the very framework left by the Founders but rejected in Roe: federalism.
As even some liberal justices noted this week, a ruling that a constitutional right exists to gay marriage would produce far more than same-sex unions. If limiting marriage to one man and one woman is nothing more than narrow-minded discrimination, by what right or logic could government limit polygamy or any other form of marriage? Who are we to judge, after all?
Currently, nine states recognize gay marriage – and I can think of no good reason why the federal government should deny benefits to people who have been legally married in those states. On the other hand, the constitutions of 30 states ban same-sex marriage, and there is no good reason the court should substitute its will for theirs.
I saw Steve Spielberg's “Lincoln” film recently, which focused on the abolishment of slavery through the 13 Amendment. It was a messy, acrimonious business, but it did end the debate about slavery once and for all. Does anybody believe a sweeping Supreme Court embrace of gay marriage would have the same legitimacy -- or finality?
Morality and the law are two different things, but morality should and does shape the law within a constitutional framework. And so, in a democratic republic, it is appropriate that gay-rights advocates make their case to the people. It is equally legitimate when Shepherds United of Fort Wayne, a diverse group of Christian pastors and priests, offers an opposing viewpoint:
“While same-sex marriage may be consistent with the current administration's worldview, we as Christians hold strongly to the conviction that when God defined marriage as between one man and one woman, he wasn't expressing a preference but a reality that is fundamental to the way that he created us as humans . . . . That is inescapably damaging to the individual, detrimental to society and therefore devastating to our future as a nation,” said the Rev. Steve Jones, central regional director of the Missionary Church.”
A system able to retain its founding principles while adapting to diverse and ever-shifting voices will never satisfy everyone. But until and unless some degree of agreement is reached on this issue, the precious chaos of liberty is infinitely preferable to the artificial unity that results whenever government usurps power it does not rightfully have.