Supreme Court stay on marriage shows desire for slower process
Ginsburg and Breyer may have sidestepped the issue because they believed they would lose Kennedy, McConnell said. Or they may have also wanted to give politics time to work. McConnell favors the latter interpretation, noting Ginsburg’s now-famous comments in which she lamented that Roe v. Wade may have been premature in that it forestalled political dialog.
“The lower courts are not showing the same interest in giving politics time to work,” McConnell said. If McConnell is right, then Kennedy and perhaps others may be caught a little off guard that the lower courts have forced the issue so quickly.
Courts v. legislatures
Politics is preferable to judicial action, McConnell argues, because legislatures are more supple and better able to accommodate multifaceted, competing interests. When the courts strike down traditional marriage law, he said, they must find either that the law is irrational or malicious.
“Both those conclusions are inhospitable to accommodations for traditional religious believers,” McConnell said. “Even many people who have changed their minds on gay marriage view it as a difficult question of social policy.” But the court cannot say that, he adds, because then it would lack grounds to strike down the law.
In short, McConnell argues, legislative action is better able to blend difficult competing claims because it allows compromises on both principles and the policies that courts are poorly situated to make.
Courts deal in the rights of private parties, said Robin Wilson, a law professor at the University of Illinois, but they are terrible in navigating complex interests involving competing claims in the larger polity.
“You put same-sex marriage advocates in a room with traditional religious believers and in the end you get some exemptions,” she said.
Wilson believes that a stable accommodation can be reached between gay-marriage advocates and traditional believers, and she argues that the latter need to begin such deal-making sooner rather than later.
Where the courts have mandated gay marriage, Wilson said, no such religious liberty accommodations are offered. The alternative to legislative negotiation, in her view, is to hold out against legislative compromise and risk everything in the courts. “My point is you have a closing window and you will be road kill,” Wilson said. “It is way worse to gamble on getting no protection.”
A compromise on such terms is of dubious value to Bill Duncan, executive director of the Utah-based Marriage Law Foundation. Duncan doesn’t see a lot of difference between a hostile court decision and negotiated legislation, if either way religious dissenters are forced to accept that they are pariahs.
“The other side says we have to do that to avoid a backlash, but all it takes is a bill to remove the exemption,” Duncan said. “Meanwhile, we have to admit that we are haters but would really appreciate if we could use our facilities for our admittedly anachronistic and strange practices.”
In such a case, Duncan fears, “to be treated like a harmless crank is best you can hope for.”
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