As the old proverb goes, “The road to hell is paved with good intentions.” Unfortunately, it looks like the marriage equality movement is heading down that road. Obviously the movement does not want to end up in hell, but it would if the Westboro Baptist Church had its druthers. It wants to go to the Supreme Court to persuade the nine justices to codify same-sex marriage into law from coast-to-coast. With loaded coffers and an increasingly supportive nation, some gay rights activists have decided to abandon the state-by-state legalization strategy and gun for a national right to marry. This is a terrible strategy that is doomed to fail.
First, nowhere in the Constitution or in the Bill of Rights is there a right to marriage. Some have tried to argue that it falls under the freedom of association, but if that were the case then the Founding Fathers would have made marriage a federal matter instead of a state matter. The Founders did not include a right to marriage in the Constitution because they did not think that anyone would be radical enough to alter or abolish marriage. They thought it was safe institution that warranted no aegis in the federal constitution.
Some same-sex marriage supporters have asserted that the 1967 Supreme Court case Loving v. Virginia, a unanimous decision that overturned anti-miscegenation laws across the country, is a legal precedent for national marriage equality. The Loving ruling asserted that laws prohibiting interracial marriage were unconstitutional because they violated the 14th Amendment’s equal protection clause. This argument has already been made and rejected. In the 2006 case Hernandez v. Robles, the New York Court of Appeals dismissed the notion that the Loving case merited the legalization of same-sex marriage.
The Hernandez ruling was later overturned by the passage of the Marriage Equality Act, which passed with bipartisan support from Democrats and Republicans and was signed by New York Gov. Andrew Cuomo last June.
As a supporter of same-sex marriage and as a Libertarian Republican, I believe that the popular passage of marriage equality by state governments is the best strategy for building consensus around the modern definition marriage.
This path has already been laid out by the Constitution’s 10th Amendment which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The passage of such legislation will take time but it will lend more legitimacy to our cause than if we seek marriage equality through judicial fiat.
We have seen what happens when polarizing social issues are left up to the Supreme Court. In 1973, the Warren Court used the Fourth Amendment (which guards Americans against unreasonable search and seizure) to enact a national right to an abortion. Almost 40 years later, abortion is still a polarizing issue.
If big-pocketed Hollywood liberals like actor Rob Reiner and producer David Geffen persist on pushing a feckless constitutional case for marriage equality, it will only fuel the conspiracy theories of social conservatives who believe that a cabal of coastal elites are conspiring to strong-arm the court into undermining their cherished Christian values.
Opponents will say that every time same-sex marriage has been put on the ballot it has been defeated, but the tides of history have finally turned in the marriage equality movement’s favor. Same-sex marriage is already legal in six states and the District of Columbia. Washington state will begin issuing same-sex marriage licenses in 2012, and I am proud to say that my home state of Maryland recently joined the equality club last month. Last April, for the first time in history, 51 percent of respondents in a CNN poll said they supported same-sex marriage, while only 47 percent said they were opposed. It is only a matter of time before same-sex marriage is legal in all fifty states. Our strategy is working and as the old saying goes, “If it ain’t broke don’t fix it.”