Richard Davis: On gay marriage, court shouldn't repeat abortion mistakes

Published: Wednesday, March 27 2013 12:00 a.m. MDT

FILE - In this Aug. 12, 2010 file photo, Billy Bradford of Castro Valley, Calif., waves a pair of flags outside City Hall while same-sex couple line up to see if they can be married in San Francisco, Thursday, August 12, 2010. A federal appeals court plans to announce Thursday, Feb. 2, 2012 if it will unseal video recordings of the landmark trial on the constitutionality of California's same-sex marriage ban.(AP Photo/Eric Risberg, File)

Eric Risberg, AP

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A U.S. Supreme Court decision on a controversial social issue tears apart the nation and leads to decades of efforts to overturn it. Of course, I am referring to Roe v. Wade, which celebrated its 40th anniversary in January but, with state after state passing stricter abortion laws to challenge the decision, has hardly settled the issue of abortion policy.

But if this sounds like what is happening now at the court, it is because the similarity is not coincidental. The court heard oral arguments yesterday in a case challenging the constitutionality of California’s Proposition 8 banning same-sex marriage. Today, it will hear another case on whether DOMA (the federal Defense of Marriage Act) is constitutional.

The court has three broad options in these cases. One is to declare that same-sex marriage is a violation of Western civilization’s tradition of marriage and strike down the laws in nine states that allow same sex marriage. There is a precedent for such a decision: In Reynolds v. U.S (1879), the court used just such logic to ban plural marriage. No one expects that outcome in this case because only a couple of justices take that position.

A second option would be to declare a constitutional right to marry. It could be based on the 14th Amendment’s guarantee of equal protection under the law and conclude that a prohibition on gay marriage is discrimination based on sexual orientation. This is what many gay rights advocates would prefer since it would overturn all 41 state constitutions and laws banning same sex marriage.

Still another option is for the court to issue a split decision. The justices could rule that DOMA is not constitutional because it preempts state laws on marriage. At the same time, the justices could uphold Prop. 8 on the grounds that states have the right to set marriage policy. Moreover, they could rule that a state has the right to refuse to sanction marriages that are inconsistent with its own state policy.

This option may be the least popular one. Those opposed to same sex marriage want a complete ban. Those in favor want complete acceptance. However, it is the most pragmatic approach, as well as one that avoids the Roe v. Wade result.

When the Roe v. Wade decision was issued in 1973, it short-circuited the political processes regarding abortion policy that were then underway within the states. Most states had banned abortion, although some were liberalizing their abortion policies. The state-by-state approach meant abortion was not a divisive national issue. Roe changed all that and thrust the issue into judicial confirmation processes, state and national elections, and repeated legislative attempts to overturn it on a federal or state level.

The justices face a similar choice today. Should they make gay marriage the new abortion by instituting a national policy that circumvents what states are doing and prefaces decades of social and political conflict across the nation, or should they allow the states to settle this issue on their own?

There is no doubt such a decision will mean conflicting approaches across state lines. For example, Washington continues to allow same-sex marriage while Idaho bans it. Of course, those differences are legion across the nation on a host of issues. For example, Nevada and Utah have taken dramatically different approaches on gambling.

This approach does not mean the gay rights movement won’t have victories. If states make the decisions themselves, undoubtedly over time we will see many more allowing same-sex marriages. But it will be a decision based on widespread political support and not judicial determination. It will be the result of gay rights advocates in each state convincing their fellow citizens that this is the right thing to do. (Recent victories in several states indicate this can be done.) And the conclusion each state reaches will have more permanence because of public support.

The Court, and the nation, is at a crossroads. Hopefully the justices can learn a valuable lesson from their previous attempt to resolve, all by themselves, a controversial social issue that affects practically every American.

Richard Davis is a professor of political science at Brigham Young University. His opinions do not necessarily reflect those of BYU. Email: Richard_Davis@byu.edu

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