You’ve probably already heard that the California federal court has found that California’s Prop 8 gay marriage ban is unconstitutional. Not California’s Constitution Un-Constitutional, but Federal, Constitution that applies to all of us Americans, unconstitutional. Gay rights groups are celebrating. But , this is not good news, regardless of how you feel about gay marriage. (For what it’s worth, I support it, both on liberatarian and socially conservative grounds.)
The ruling will be appealed, and the Ninth Circuit will certainly uphold the decision. So this battle will really be fought in the Supreme Court. And that is exactly the battle that gay groups have been avoiding, with good reason.
Let’s say that same-sex marriage supporters suffer a loss at the Supreme Court. That’s huge. SCOTUS only takes a few cases a year; it will likely be decades before they may be willing to take such a decision back, if not generations. Having such a devastating loss from the highest court in the land will gird opponents and inspire revisits, and perhaps reversals, of the pro-gay marriage decisions that have been made up to now.
On the state level, gay marriage supporters have made incredible strides in a very short time. Gay marriage has been, and can continue to be, growing in acceptance, and people are becoming more comfortable with it. A renouncement from the highest court in the land will be a devastating blow, and may stop that progress in its tracks. Gay marriage opponents, which, it is important to remember, still constitute a majority of Americans, who may have lost interest or given up will be reminded of their opposition, and will take up arms again.
On the other hand, let’s say that the Supreme Court upholds the California court’s decision. A win for gay marriage across the country? Perhaps. Four years ago, I would have said that, should SCOTUS find such a right, we would expect a Constitutional amendment within days. Things have changed in that regards, and opponents of such an amendment would have a much stronger case. Stronger, but far from airtight.
If there is an amendment against gay marriage, it sets an alarming precedent. It is not the place of the U.S. Constitution to set rules about popular social issues, and we should not start making it so. Attitudes are changing; it does no good to set into stone a rule based on attitudes that may change in a matter of years. As above, having a Constitutional Amendment, even one that gives states the right to make the decision, would reinvigorate opponents and gay marriage supporters would likely lose a great deal of the traction that they have gained in the past few years. In our nation’s history, we have only overturned one Constitutional Amendment, so restrictions on gay marriage would be likely to last much longer than it would if it had been allowed to win support on its own. It is simply not worth this risk.
Even if such an amendment does not happen, the mere spectacle of a Supreme Court case and the national debate over an amendment will be a massive distraction from the important issues facing our country. Regardless of the Supreme Court’s decision, it will almost certainly be a 5-4 split, which will mean that opponents will have every reason to question its validity. Whether we like it or not, people care about this issue, and it is bound to bring up passionate debate and public interest. Normally, debate and public interest are a good thing; however, our nation is now facing serious issues about the nature and role of government. Like many of my fellow libertarian leaning Americans, I have been overjoyed at the new attention that this debate has brough to the public, and revel in the sudden attention that regular people now pay towards the government’s actions. Distraction, in the form of a nationwide gay marriage debate, will allow government to grow, unchecked, while the people who would keep it in check debate an issue that in no way affects their livelihood and our country’s economic future. We do not need to debate social issues right now; we need to keep the focus on the government. A debate on gay marriage will not help that focus, and it will hurt our country.