While a strong supporter of legalized abortion, U.S. Supreme Court Justice Ruth Bader Ginsburg has long been critical of the court’s 1973 Roe v. Wade decision preventing states from banning abortion. She believes the ruling prevented the nation from reaching a consensus on abortion and contributed to societal divisions which continue today.
Last month at Princeton University, she said that, in handing down Roe, the court “bit off more than it could chew.” She would have preferred a more incremental decision, which “would have been an opportunity for a dialogue with the state legislators.” With more input from elected state representatives, we might have moved closer to a national consensus on abortion.
As it is with abortion, so too should it be with gay marriage. The issue will continue to divide us unless we bring the people, either directly or through their elected representatives, into the process.
Social divisions on gay marriage were made manifest in the bitterness of the debate on California’s Proposition 8 which amends the state constitution so that the Golden State may recognize as valid only marriages between a man and a woman. It thus overturns the California Supreme Court’s decision of May 15 mandating that California recognize same-sex marriages.
On the day that decision was handed down, I wrote:
Advocates of the traditional definition of marriage have gathered enough signatures to place a referendum on this fall’s Golden State ballot which would amend the state’s constitution to ban recognition of same-sex marriage. I fear that with the court having short-circuited the legislative and initiative process, the chances of that ban passing increased today.
With the success of Proposition 8 on Tuesday (it passed with more than 52% of the popular vote), that fear has been realized.
Proposition 8 passed despite the opponents’ numerous advantages. Nearly every newspaper in the state inveighed against the initiative. The language on the ballot focused on the elimination of the right of same-sex couples to marry rather than on the recognition of the traditional definition of marriage (as initiative proponents had hoped). It is a Democratic year in a Democratic state, with the Democratic Party’s sample ballot (at least in Los Angeles) favoring a “no” vote on 8. And finally, many Californians have a kind of “default” reaction to ballot measures, voting “no” when they are uncertain about the proposition.
To overcome these disadvantages, proponents of Proposition 8 began their campaign by pointing out that judges and politicians were trying to force gay marriage on the citizens of California. In their first television ad, they pointed out that four judges on the California Supreme Court “ignored four million voters,” the approximate tally of citizens who, in 2000, voted in favor of Proposition 22, which defined marriage as the union of one man and one woman. Those four justices explicitly overturned that initiative in their May decision.
That same ad showed San Francisco Mayor Gavin Newsom saying that gay marriage would happen “whether you like it or not.” The campaign thus made it appear that citizens were being left out of the process.
Other ads suggested that Proposition 8’s failure would lead to schools teaching gay marriage and prevent parents from allowing their children to opt out of such instruction. A “yes” vote would return sovereignty over such matters to the people.
Whenever state courts mandate recognition of gay marriage, it leads to a backlash at the ballot box. By November 2004, not even a year after the Massachusetts Supreme Judicial Court (the Bay State’s highest court) handed down the Goodridge decision finding it unconstitutional under the state constitution to limit marriage to different-sex couples, voters in thirteen states enacted constitutional provisions defining marriage by its traditional definition: the union of one man and one woman.
This year, after the California and Connecticut Supreme Courts handed down rulings similar to Goodridge, voters in Florida and Arizona joined those in California and amended their state constitutions.
Following the passage of Proposition 8, Jonathan Rauch, author of Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America, wrote that gay marriage advocates need to rethink “the wisdom of mindlessly pushing lawsuits through the courts without adequately preparing the public.” Since state courts began mandating gay marriage, thirty states have amended their constitutions to define marriage so as to prohibit recognition of same-sex unions as marriage.
In only one state, Arizona in 2006, did voters defeat a popular initiative defining marriage, but that measure was rather draconian as it would have blocked civil unions as well. This past year, Arizona voters approved a less sweeping amendment, limited only to marriage.
It is thus clear that success for gay marriage in the courts leads to a popular backlash. Those serious about gay marriage need to spend more time trying to convince their fellow citizens of the merits of changing the definition of marriage to include same-sex couples and less time making that case to unelected judges.
Thirty-five years after the U.S. Supreme Court deprived citizens and our elected representatives of deciding how to regulate abortion, we are still debating the issue. The record of this past week shows that when state courts attempt to deprive citizens of the right to define marriage, citizens will act to overturn their decisions.
What Justice Ginsburg said about abortion applies to gay marriage as well. We need a dialogue with state legislators — and those who elect them. Such conversations may not yield gay marriage this year, or even next, but should lead to state recognition of same-sex civil unions and domestic partnerships. This has already happened in such states as Connecticut, New Hampshire, Oregon, and even California.
If gay marriage advocates succeed in making a more persuasive case to the American people, then states will start calling those unions and partnerships marriage. It may not happen as rapidly as some would like, but when it does, it will not meet with the backlash that follows court decisions mandating marriage. Hearing a better case for gay marriage and seeing well-adjusted gay couples, Americans will slowly begin to accept a broader definition of this ancient institution.
A social consensus will have emerged.