Saturday, September 11, 2004

Gay Marriage, Tradition, & Founding Principles:

Andrew Sullivan has an interesting piece on gay marriage where he makes the case (like Jonathan Rauch) that the gay marriage battle is best fought at the state level. But he also recognizes, paradoxically, that this issue is not at heart, wholly a “states rights” issue. Sure marriage & family law are primarily within the domain of state law. Yet, civil rights—in this case, the right to marry—are established federal issues.

Should the case come before the Supreme Court, I think a strong case can be made that the right for gays to marry the person whom they love is a federal right that no state may abridge. If I were on the court, I could be persuaded that the right to marry constitutes a “privilege” under the 14th Amendment’s “privileges or immunities” clause that no state may abridge. Moreover, the ban on gay marriage is also governmental gender discrimination, which, according to established precedent is subject to “intermediate scrutiny” (which is heightened scrutiny, unlike the default “rational basis” test). Thus, the combination of the denial of a right to marry the person one loves combined with the heightened scrutiny of the suspect gender classification would be enough to declare gay marriage a constitutional right under the 14th Amendment.

Yet, like Sullivan, I don’t think the Supreme Court ought do this…at least not yet. This probably angers many gays & their supporters because “equality” isn’t something that folks ought to have to wait for. Moreover, as a matter of principle, right is right and wrong is wrong. If it’s wrong to deny gay marriage in say 40 years, it’s just as wrong to deny it now. I don’t believe that morality evolves (but our understanding of what constitutes right & wrong, certainly changes with the times—usually our understanding betters), and I don’t believe that the Constitution is a “living document” that should change with the times. I don’t believe that denying gay marriage ought to be “constitutional” one minute, and then unconstitutional the next. If the Constitution, properly understood, demands gay marriage be recognized, I understand the sentiment that would argue for this right being recognized at the federal level, now rather than later.

But if history teaches us anything, it teaches us that, unfortunately, it’s necessary to make temporary compromises with unchanging ideals. That sometimes, it’s just not feasible to secure an ideal at the moment—justice sometimes must be delayed.

And our founding is instructive. This nation was not founded on “slavery”; rather we were founded on the antithesis of slavery—that “all men are created equal” and endowed with certain unalienable rights. Yet, it simply wasn’t possible at that time to secure the consent of the southern states to join the union (also necessary according to our founding principles) and abolish slavery. So that ideal had to wait before being fully secured.

It’s true that recognizing gay marriage would constitute a radical break with tradition. Yet, the modern principles of political and natural right that found nation also represented a radical break with tradition. Contrary to the revisionism that goes on in some circles, America was indeed founded on the same Enlightenment principles of “liberty” and “equality” as the French Revolution. If conservatives don’t agree with this, then let me quote Francis Fukuyama, whose intellectual and conservative bona fides are beyond reproach, from his booknotes interview on The End of History and the Last Man, to support my contention:

Now, by the French Revolution, we don't mean just the limited historical event; what we mean is the emergence of what we understand as modern liberal democracy because in the French Revolution, ultimately what it was about was a revolution in favor of the principles of liberty and equality. Now you could substitute the American Revolution for that because, I think in that kind of ideological sense, those two revolutions were equivalent. I mean, they were both revolutions to create what I earlier defined as a liberal democracy as a political system based on popular sovereignty with guarantees of individual rights.


But the French Revolution turned out to be much different (worse) than the American. What were the major differences? They were not primarily ideological (Jefferson, one of the most important “thinkers” of the American Revolution, supported the French), but rather methodological. Both revolutions represented a radical break with tradition. But what the French sought to do was immediately reshape society according to those revolutionary ideals and throw out everything that it deemed inconsistent. Yet, because human beings are human, and thus error prone, something went drastically wrong along the way and their society went into convulsions. In essence, they moved too far too fast.

The American Revolution on the other hand, founded itself on the same revolutionary principles, but didn’t try to reshape then present society very much at all. Modest changes were implemented and most of the old order was left intact. But many aspects of the old order that were left intact were flat out inconsistent with our revolutionary ideals: slavery, state establishments of religion and impingements on the free exercise thereof and religious tests for public office, and other forms of racial, ethnic and gender inequality, etc. Yet, those revolutionary ideals weren’t going away and over time these illiberal vestiges of the old order would be challenged. And society would be transformed gradually. Slavery ended in 1865. The states, by themselves, disestablished their churches and granted free exercise rights. By the time the 14th Amendment passed, state establishments of religion were virtually gone. Eventually the 14th Amendment would apply the bill of rights to the states. Many of the changes that society experienced in the 20th century (the greater, more universal expansion of liberty and equality rights) were necessarily implied by our founding principles.

But the bottom line is, by making slow and gradual changes (when the time was *right* for each change), America far more effectively implemented those revolutionary principles. The French Revolution shows us what can happen when we move too far and too fast in the pursuit of the greater good.

So back to gay marriage. What should the Supreme Court do? Not take a gay marriage case in the meantime. If they took such a case, in principle, I might wish them to decide in favor of gay marriage. But, if done too early, it could blow up in our faces. Better for them not to take the case, or if 4 members decided to grant cert., dismiss it on a technicality like they did with the Newdow case.

How many states currently have recognized gay marriage? One. Even though the equal protection clause was passed in 1868, Loving v. VA wasn’t decided until 100 years later. And how many states prohibited interracial marriages at the time Loving was decided? Only 16. There once was a time when sodomy laws were universal throughout the nation. How many were still on the books when Lawrence v. Texas was decided? Only 13.

So let’s fast forward 30 or 40 years when say, 35 or so states have voluntarily recognized gay marriage. Then, that’s when the Supreme Court should take the gay marriage case and guarantee such a right.

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