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.
That won't be the end of this battle: The matter will simply be returned to state legislatures, which are best suited to make the decision, as well as to governors and attorneys general.
Once it is clear that states do have the right to define marriage within their boundaries, some states will move over to a definition of marriage favored by the three states in which voters have approved gay marriage (Maine, Maryland and Washington), or the eight states (plus the District of Columbia) in which legislators have authorized such marriages. The people of many other states will retain a traditional definition of marriage.
This scenario may be completely at odds with the conventional wisdom. What about California? The storyline of the film "The Case Against [Proposition] 8" revolves around the death by lawsuit of California's voter-approved law defining man-woman marriage. The film tracks Ted Olson and David Boies, attorneys once at odds in representing Bush v. Gore at the Supreme Court, but who joined forces for gay marriage in California. The film culminates with such marriages in San Francisco and Los Angeles.
The problem with this picture is that the Supreme Court simply refused to rule on state marriage laws when state actors wouldn’t defend those laws. The upshot? Many states are indeed defending their laws. Once the high court affirms our nation’s federalism, including state interests in marriage, state attorneys general cannot argue that man-woman marriage is “unconstitutional.”
State-by-state disputes will be messy. But conflicts about fundamental values are best reconciled through politics, and through the mediating institution of federalism.
State legislators should begin thinking now about how they will approach thorny issues of marriage, post-Supreme Court decision. How will legislators protect the free exercise of religion, including the right of businesses and educational institutions not to be coerced into supporting practices (such as same-sex marriage) with which they fundamentally disagree? How will states protect an individual’s legal right to contract with a partner for social benefits? A pluralistic state-by-state solution may not satisfy everyone — in fact, it will completely satisfy no one — but it is the best remedy to tackle what is otherwise intractable.
Drew Clark is opinion editor of the Deseret News.