Ramblings on Gay Marriage, the Judiciary, Churches and Constitutional Amendments

Though on many policy issues I'd be considered a liberal (a few exceptions being gun control, the death penalty, affirmative action), I am also strongly in favor of judicial restraint and, instinctively, states' rights (though I've not given the latter enough serious thought to articulate a particularly intelligent position).

As such, I support judicial restraint even when it upholds a policy I might disagree with (Grutter for instance, though it's awfully hard to call anything O'Connor does 'restrained'), and am uncomfortable with activism even when it enforces a policy I might support (Lawrence for instance). In this sense, I was and am uncomfortable with Goodridge.

On the one hand, I have always thought the strange intersection between religious marriage and civil marriage to be a troubling curiosity. There are good reasons for governments to license pair-bonds for various governmental purposes. There are good reasons for churches to sanction pair-bonds under the various religious doctrines. Yet what these institutions had to do with each other, I've never fully understood.

As a state legislator, I would vote to give gay couples the same privilege of civil marriage/union/whatever, and wouldn't call it anything different from what heterosexuals have. If we choose to change all marriage licenses to "civil union" licenses, that's fine. But gay couples would get the same thing as heterosexual couples under my preferred system.

As a member of a church governing body (however these manifest themselves), I can say that I would vote the same way. But this is a silly counter-factual. So many things about my belief system would have to change for me to be a member of a church governing body (I'm an always struggling Buddhist) that it's silly for me to presume to know how I'd feel about gay marriage in that situation. From looking at most church leaders' reactions, it seems pretty likely that I'd be opposed to gay marriages in my church, if not in society generally. And I respect the right of those churches to place such a limit on which ceremonies they'll sanction. As such, it is important to me that any changes made in the civil code (either by my preferred legislative route, or through less attractive judicial means) respect that right. I'd be very upset to see Goodridge type rulings somehow used against churches. That's a slippery slope fear, and I usually try to avoid them. But it's something I've been thinking and wanted to say. It is very important to me that the First Amendment continue to protect churches' right not to sanction gay marriages, or interracial marriages, or any other kind of marriage, no matter how much I might disagree with such a policy. (I should stop to make clear something that ought to go without saying, which is that by church I mean to cast a wide net over religious groups, not just Christian groups).

With all of that said, I'm left in a very strange position. Where should I go from here? I'd like to see the state legislatures doing the work on this issue. Of course, I'd like to have seen the same thing with school desegregation, and maybe that attitude would mean blacks were still excluded from my law school. Nonetheless, I tend to agree with Taylor's assessment that, unlike the issue in Lawrence, the prohibition on gay marriage "is simply not oppressive in the same sense as is criminalizing gay sexual intimacy." So I'm a bit more willing to wait for the younger generations and their norms to take control of the state legislatures and change the laws.

I am not, however, sufficiently upset at the possibility of judicially-imposed gay marriage that I would favor amending our Constitution to prevent it. I have several reasons for this:

1. The Full Faith and Credit Clause would seem to work the same way whether a state legislature passed the law or the judiciary did so. So if, instead of Goodridge, we instead had the Massachussetts legislature change their laws to allow gay marriage, the FFC would seem to require other states to recognize that (this assumes, as has been argued, that the Defense of Marriage Act will be ruled unconstitutional, thus the need for a constitutional amendment). As such, though it is upsetting to me that a court has created the right in this case, the broader federalism "problem" is not really caused by the court's involvement, but by the Full Faith and Credit Clause in the Constitution itself.

2. As hesitant as I am to have activist judges, I'm even more hesitant to amend our fundamental legal document. The idea of inserting an amendment on marriage (of all things!) seems like a tremendous overreaction and would degrade the document itself. On some issues (let's take abortion for example), I can see why those upset by judicial activism might be SO upset as to want to amend the Constitution. In their view, there are millions of lives at stake. In the case of gay marriage, I just don't see the worst case scenario (judicially mandated gay marriage in every state) being so horrible even to those who oppose it on policy grounds (e.g. not the procedural judicial restraint grounds I've endorsed above) that it would justify changing the Constitution. Amend it to abolish slavery, yes. Amend it to abolish abortion if you think abortion is murder, fine. But to prevent gays from being able to get marriage licenses, file joint tax returns, buy homes in tenancy by the entirety? That's worth changing the Constitution over?

3. It restricts future legislation on the issue. This gets tricky. As I've said, my first choice would be for courts to restrain themselves, and for every legislature in America to pass gay marriage laws. But let's assume that's impossible. Before that could happen, we'll have one of two scenarios. Either: a) the courts find a constitutional right to gay marriage, and this prevents legislatures from banning gay marriage; or b) a constitutional amendment is passed banning gay marriage, and this prevents legislatures from legalizing gay marriage.

Now I know there are lots of interpretations of the various proposals for the language of an amendment, and many are intended/claimed to respect the legislatures' right to legalize gay "civil unions" (but not marriages), while preventing judicial activism. Nonetheless, I've also seen interpretations (here is Jack Balkin's) that suggest the amendment would really go so far as to prevent government officials (judges, administrators, executive officals, legislatures, etc.) from really giving "civil union" partners the "legal incidents" of marriage that are embodied in family law, property law, etc.

So to a large extent, I see the judicial activism vs. Amendment process as a wash in terms of upholding legislative supremacy and states' rights. One route prevents legislatures from banning gay marriage, one route prevents them from legalizing it. I can't favor either.

If you've gotten this far, I apologize for not being able to sum this all up to some neat philosophy or normative prescription. I'm as lost as these remarks probably make me seem.