From the left and the right, the pundits and so-called experts were not short on opinion regarding Justice Anthony Kennedy’s Defense of Marriage Act (DOMA) opinion.
The Wall Street Journal labeled it “A Gay Marriage Muddle.” Justice Kennedy’s majority opinion in Hollingsworth vs. Perry had called DOMA “an illegal federal intrusion on the traditional state power to regulate marriage.” Moreover, he explicitly contended that it was hateful and animistic toward homosexuals and lesbians who desire to enter into a marriage contract, and thus it was in violation of the Fifth Amendment’s due process clause.
The conservative intellectual firebrand, Justice Antonin Scalia, countered in a scathing dissent, arguing that Justice Kennedy’s reasoning was “legalistic argle-bargle” and sermonizing to all proponents of traditional marriage that their moral position is inferior to that of an enlightened, pluralistic and secular society.
Chief Justice John Roberts jumped into the war of legal lexicon, contending that, in fact, though the court “goes off course” in overturning DOMA it nonetheless based its judgment on the qualities of federalism. He suggested that future battles will be in the states and not the federal courtroom.
Don’t hold your breath. Jeffrey Toobin, liberal legal pundit and scholar, writing for The New Yorker was effusive in his lauding of Justice Kennedy’s decision, declaring, “The obvious correctness of the court’s judgment, its curt dismissal of a monstrous injustice, has a grandeur that requires little elaboration.”
On the contrary, it requires much elaboration, largely because it missed a sizable piece of this highly divisive issue: the moral and religious element.
In his work “Justice: What’s the Right Thing to Do?,” Michael Sandel, Harvard political philosopher, contends that the same-sex marriage issue is at its heart as much, if not more, a moral, even religious, issue as it is a nondiscrimination and freedom of choice issue. For Sandel, the real issue in the same-sex marriage debate (he published his book in 2007) does not rest alone “on the ideas of nondiscrimination and freedom of choice,” but it must include addressing what is the “purpose of marriage and the virtues it honors.” And to address these concerns, Sandel argues, it “carries us onto contested moral terrain,” including the religious, to ultimately address the question of “whether same-sex unions are worthy of honor and recognition by the community — whether they fulfill the purpose of the social institution of marriage.”
For Sandel, “community” is not limited to the state; it refers to all of the public institutions that constitute society as a whole, including private and nonprofits, such as the faith community, as well as civil institutions. In our pluralistic liberal democracy, however, the one “best” way of determining community recognition is through public-opinion polls and direct and indirect democratic representation methods. This suggests that the people have (or should have) the ability and right to determine their political, social and moral fate, using such tools of democracy as referenda and initiative, as well as the more standard electoral process.
Yet when the people exercised this freedom, such as in California’s Proposition 8 and the national passage of DOMA, the negatively affected minority ( i.e., proponents of same-sex marriage, who could not effectively persuade the majority through the democratic process) resorted to the highly liberal and elitist institution called the courts.
The Indiana General Assembly, and especially Republican leaders, will be faced with the decision of how to proceed come November 2014. Do they put the traditional marriage amendment to a vote by the people, even when some recent polling suggests a growing movement of more acceptance of same-sex marriage by Hoosiers? If they do proceed this way, will they get the result they want? And even if they get the result they want — whatever that is — will it withstand court scrutiny?
Let us hope our leaders see this as a debate for the citizens of Indiana, religious communities, affected interest groups and legislative officials. It is not — or at least should not be — an issue to be resolved by the courts.