Drew Clark: On marriage dispute, the choice for federalism has gone from compromise to opposition viewpoint

Published: Sunday, June 22 2014 12:00 a.m. MDT

Updated: Sunday, June 22 2014 11:50 p.m. MDT

When the Supreme Court rules on whether federalism permits states to define their own marriage laws, I predict it will uphold a state’s authority to define marriage as between a man and a woman.

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SALT LAKE CITY — Same-sex marriages are recognized in only a minority of states, and yet legal battles engulf all other states on this contentious issue. What used to be seen as a compromise in the culture wars — allowing federalism to hold sway as each state decides its own marriage rules — is now the opposition viewpoint.

Each side is seeking vindication from the Supreme Court. But because we are talking about matters of deeply held individual liberty and conscience, a Supreme Court decision is unlikely to end the debate. That’s why it’s more important now than ever before to look for compromises between the rights of gays and the ability of states to make democratic decisions governing family law.

To advocates of same-sex marriage, gays and lesbians are seeking normalcy. Gays and lesbians say they want the legal right to express their loving relationships through government recognition of their unions. To advocates of man-woman unions, marriage cannot be casually redefined. Male-female relationships are the foundation for sexual reproduction, and supporters say that marriage between a man and a woman provides for the optimal rearing of children, who constitute society’s future generations.

This social, moral and political dilemma appears to be a classic lose-lose scenario. One side cannot obtain its hopes and dreams without crushing others’ deeply held beliefs.

For the past year, the conventional wisdom has been suggesting — indeed demanding — that gays and lesbians seeking marriage will obtain it across the nation. Those who believe that a child deserves a mother and a father and that it would be wrong for the government to impose gay marriage will be overrun and shut out of the public discourse, the conventional wisdom continues.

This viewpoint is also embodied in the HBO film about recent battles over same-sex marriage. The film, "The Case Against 8," premiered at Sundance in January and debuts nationally on Monday.

But the conventional wisdom is wrong. Here's why:

Moral and religious views don't abide by U.S. Supreme Court decisions. Gays, who were deeply offended when the high court upheld Georgia's laws against sodomy in 1986, mobilized to create a political movement demanding liberty from government intrusion. Gays didn't change because the Supreme Court said so.

Neither did Christians quietly accept the high court’s nationalization of abortion rights in the 1973 Roe v. Wade. "It moved abortion out of the realm of normal politics, which cuts deals and develops consensus, and into the realm of protest politics, which rejects compromise and fosters radicalism," wrote Jonathan Rauch, a former colleague of mine at the National Journal. "Outraged abortion opponents mobilized; alarmed abortion-rights advocates countermobilized; the political parties migrated to extreme positions and entrenched themselves there; the Supreme Court became a punching bag; and abortion became an indigestible mass in the pit of the country’s political stomach." If anything, sentiment against abortion is stronger now than it was 41 years ago.

The last thing the Supreme Court justices want to do is to stoke social conflict, a lesson they’ve learned through hard experience. The court's decision last June against a federal law disrespecting New York's definition of marriage didn’t invalidate state marriage laws, in spite of widespread misrepresentation of that decision.

Yet given the large number of cases on appeal, at some point the high court must resolve differences of interpretation. And when the court is presented with a choice on this matter next term — probably with Utah's case — it’s likely that the high court will choose the path of least contention. I predict it will uphold a state’s authority to define marriage as between a man and a woman.

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