Same Sex Unions and the Political Process

Much of modern Conservatism vigorously sprouted from the fecund mind of William F. Buckley. In 1955 he succinctly expressed, for many, the role of modern Conservatism to “stand athwart history, yelling STOP, at a time when no one is inclined to do so, or to have much patience with those who do.” That was almost 50 years ago. Not even Buckley’s inventive mind could have predicted the social and cultural changes that have reshaped our lives in the intervening time.

Given the congenital libertarianism of most Americans and the concerted effort by the entertainment industry to favorably portray homosexual behavior, it is politically inevitable that we will in some way grant legal recognition to same-sex partners, despite the loudest protests of “STOP.” One important concern now is of process. We are at a point where we may repeat the same mistakes with respect to same-sex unions that we made with regard to abortion law.

The Supreme Court’s Roe v. Wade decision in 1973 forbade states from regulating abortion (at least in the first trimester). At that time, 17 states were already permitting abortions and the trend was in the direction of further liberalization. In 1972, the year before the Supreme Court acted, there were nearly 600,000 legal abortions so the procedure was not rare. If the Supreme Court had allowed individual states to come to grips with the issue, it is likely that virtually all states would now have some form of legal abortion. Some would be more liberal than others. Different states would have regulated abortion during different periods of pregnancy. Different states would have written different laws concerning parental notification and the age when a young woman (girl?) could opt for an abortion. There would have been different rules concerning counseling requirements and waiting periods. These laws would have reflected different solutions and approaches and we could have empirically observed which were the most effective.

Importantly, everyone would realize that the laws represent the collective wisdom of the polity as opposed to the social preference of judges who succumb to the temptation of the law and conjure up rights that do not exist in the Constitution to create the outcome they want. The level of political animosity would have been reduced. The selection of judges for the higher courts would not involve the same rancor and political combat they do now. Major changes in social policy would not depend on the decision of a few judges or the president that might appoint them, but rather by the democratic process. Changes would arrive through political persuasion, not through endless infighting to produce judges that will rule a particular way on one particular issue — a corruption of the judge appointment process introduced in the last couple of decades of the twentieth century.

Are we now on the verge on making the same mistake with respect to same-sex unions, the Supreme Court inflicted upon us 30 years ago? The equal protection clause of the Fourteenth Amendment to the US Constitution has been twisted like a pretzel recently. During the last Supreme Court session, the Court found that selecting students dominantly by race was consistent with the Fourteenth Amendment despite its plain wording that “No state shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This is a clear demonstration that there is no limit to the wreckage possible by fertile legal minds on a crusade. If the US Supreme Court stretches the equal protection clause to compel states to recognize same-sex marriage, as the Massachusetts Supreme Court did with the Massachusetts state constitution, it will have unforeseen and undesirable consequences. By unnecessarily wielding the sledge hammer of the Fourteenth Amendment, there would be no principled way to prohibit marriages of more than two or among closely related people. What are we to do if groups of three people show up in San Francisco demanding a marriage license? If we institutionalize individual sovereignty in demanding formal legal recognition for private choices, there would be no principled way to deny such recognition.

Certainly, no law prevents any two or more people from making private legal arrangements that largely mimic marital rights in financial and some legal matters. If some states wish to codify such relationships as civil unions or marriages, there is no constitutional impediment at the federal level, though we may have to deal with the issue of recognition across state lines at the Federal level.

State regulations will reflect varying judgments about justice and efficacy, but in manner consistent with the workings of a representative republic. If legislative mistakes are made, it is relatively easy to pull back and modify legislation. If we make dramatic errors in Constitutional interpretation, it may require decades to pull back or force otherwise unnecessary modifications to the Constitution. The legislative process among the different states permits experimentation before we lock in long term social changes. Perhaps we will even be able to avoid national acrimonious fights over judges into the middle of the century.

When Buckley was shouting “STOP” to inexorable change, those on the cultural Left were arguing that marriage was only a “piece of paper,” that love was the true binding force that was somehow diminished by the necessity for a “license” and the approbation of society. Now those on the far side of the cultural divide have come to appreciate the importance of marriage and the necessity for societal support of the institution, ideas that Conservatives insisted upon and the Left disparaged, perhaps the Left will now listen to Conservatives before irreparable damage is done to the culture and the Constitution.

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