Today the Supreme Court will hear arguments on California’s Proposition 8. Tomorrow it will hear a related case involving the federal Defense of Marriage Act.
Each defines marriage as a union between a man and woman. The question is whether the court will use the cases to discover a right to same-sex marriage. We hope they choose a more modest path.
What does that mean?
At its heart, it means trusting the American people acting through their elected representatives at the state level. The reasons are both practical and constitutional. As the amicus brief for the Becket Fund for Religious Liberty notes, legislatures are “more adept at balancing competing social interests, including religious liberty.”
The Becket Fund brief takes no position on same-sex marriage. But it is interesting because it answers a question often asked: Why should anyone care about anyone else’s right to marry?
The answer is that without clear conscience protections, we will see more religious institutions and individual citizens forced to violate their beliefs or be driven off the public square because their moral views have been deemed officially bigoted.
These fears are not hypothetical. In New York, Yeshiva University was forced to accept same-sex couples in its dorms for married students. In New Jersey, a Methodist association was sued after it would not allow a lesbian couple to use its boardwalk pavilion for a civil union ceremony. In Boston, the Catholic church was forced to get out of adoption because it would not place children with same-sex couples. Without clear conscience protections, we will see more, on everything from access to government facilities to licensing or accreditation.
It’s true that attitudes are changing. Some polls show most Americans now in favor of same-sex marriage, and some state legislatures have passed it. We believe in legislatures because democracies are based on the idea that the way to get what you want is to persuade your neighbor — not find a court to impose your solution.
In the give and take of leaving it to the states, we will have messy solutions. But messy compromises based on a right located in the First Amendment are surely preferable to a Supreme Court that makes an end-run around our democratic process.