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Having written about my personal and religious thinking about same-sex marriage, I now want to address the politics of the issue.
Yesterday, a panel of the 10th Circuit ruled that Utah’s ban on same-sex marriage is unconstitutional. That ruling is on hold while Utah will appeal to either the full 10th Circuit or to the Supreme Court. Ultimately, this case will be decided by the U.S. Supreme Court. And at this point, it’s possible it could go either way.
While for the reasons explained in my previous post I have come to support same-sex marriage, I do not believe it is a constitutional right under the U.S. Constitution. There is absolutely no way that anybody involved in passing the Constitution, the Bill of Rights, or the 14th Amendment thought that what they were doing created a constitutional right to same-sex marriage. If you want to find a right to same-sex marriage in the Constitution, pass an amendment. Otherwise, you are twisting the document to fit your own preferences, and thus setting a terrible precedent in the long run.
But, you may say, as society and language evolve, the meaning of the words of the Constitution can change. OK, fine. Article IV Section 4 of the Constitution says, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” Over the past 200 years, the phrase “domestic violence” has evolved to mean violence between family members. If you believe that the meaning of the Constitution can change over time (without amending it) as society and language change, this means there is a perfectly legitimate argument there is a constitutional right for states to demand that the federal government protect them against spousal abuse and child abuse. Oh, and seeing that the word “Republican” has evolved in our society to mean a certain political party, then arguably the Constitution empowers the federal government to oust the Democrats in any state they control and replace them with Republicans.
Obviously, those interpretations are ridiculous, but if you accept the premise that the meaning of the Constitution and its amendments were not fixed at the time they were passed, you don’t have any leg to stand on to argue against the legitimacy of a court interpreting the Constitution in such a fashion.
So that’s why, while I believe that state governments should allow same-sex marriage, I do not believe the Constitution requires it.
But enough about fundamental principles of constitutional interpretation. Let’s talk politics.
My fellow Republicans and conservatives, if you’ve been paying attention to the news, you know that judges in state after state keep ruling that bans on same-sex marriage are unconstitutional. I do not think such rulings are sound, but they’re obviously a taste of things to come. Even if the current Supreme Court overturns those rulings in the next couple of years, there will eventually be a Supreme Court ruling legalizing same-sex marriage nationwide.
It’s going to happen. The only thing Republicans/conservatives can do is try to minimize the fallout by trying to protect people’s conscience rights to not be forced to support same-sex marriages. That is why Republicans in every state where same-sex marriage is not currently legal should support compromise legislation that legalizes same-sex marriage while making it clear that individuals have conscience rights to not act in support of such marriages. And Republicans in Congress should pass a law requiring states to recognize same-sex marriages legally performed elsewhere, while protecting the conscience rights of individuals.
The exact definition of what those conscience rights are can be negotiated. Personally, I would say that no one should be required to attend same-sex marriage events (e.g, wedding photographers), or to have their assets used for such events (e.g., reception hall owners), or to use their creative/artistic skills (e.g., cake decorators) or professional judgment (e.g., marriage counselors) in support of same-sex marriages. It does not mean that restaurants can put up “No gays allowed” signs. It might be better (and, in the long run, likelier to be upheld by the courts) if the conscience right is not limited to objections to same-sex marriage, but rather broadened to include any strongly held belief of conscience. For example, an anti-circumcision photographer should not be forced to attend a bris, a Holocaust survivor should not be forced to rent his reception hall for a neo-Nazi celebration of Hitler’s birthday, etc.
Basically, the reason Republicans and conservatives need to pass such legislation now is that we only have political leverage to get the other side to compromise as long as there’s a chance the Supreme Court won’t force all states to recognize same-sex marriage. In fact, it may already be too late, because many of the supporters of same-sex marriage seem to feel victory is within their grasp and are therefore unwilling to compromise. We would have had a better chance of protecting conscience rights had we passed such a compromise a decade ago. Of course, if the Supreme Court rules against a constitutional right to same-sex marriage, supporters of the right may become more willing to compromise. But offering a compromise that legalizes same-sex marriage in return for protecting conscience rights is our only hope of protecting such rights in the long term, and we need to pass such legislation as soon as possible.