The arguments on gay marriage before the Supreme Court this week pose the most momentous questions the court has faced in the past 50 years — and perhaps in its history. At stake is the definition of an institution that has been the bedrock of civilization from time immemorial.
For at least the past 2,000 years, marriage has been defined as the union of one man and one woman in Christian cultures. But the definition hasn’t been universal in all cultures or at all times. Islam allows polygamy. Historically, Jewish men were allowed to have more than one wife — as Abraham, Jacob, David and Solomon did — though the practice was banned among Ashkenazi Jews a thousand years ago and isn’t practiced today even among Sephardim. And Mormons practiced polygamy until giving it up in order for Utah to be admitted as a state.
Nonetheless, until quite recently, all societies have insisted that marriage entail at least one male and one female. There are no exceptions by any society until the late 20th century. Now plaintiffs are arguing that the Supreme Court should declare a fundamental right grounded in the Constitution for same-sex couples to marry. I think that would be unwise.
That doesn’t mean I believe the court should uphold the Defense of Marriage Act, which denies federal benefits to same-sex couples whose marriages are recognized in a handful of states. Nor does it follow that the court should necessarily reverse lower court decisions striking down a California referendum defining marriage as the union of one man and one woman.
A majority of Americans now accept same-sex marriage, as do an overwhelming majority of young Americans, by 80 percent in some recent polls. Given that the civil institution of marriage reflects the values of the society, it is hard to imagine that same-sex marriages will not become legal in many if not most states within a short time frame. If the court strikes down DOMA, as I believe it will, even those states that deny same-sex couples the right to marry in their state would be forced to grant spousal rights to couples married in other states, just as they do heterosexual couples.
As someone who believes strongly in our federalist system, in which states are the basic units of political power with only delegated power given to the federal government, I think marriage should be the provenance of the states. But I am also sympathetic to the many committed gay couples who wish to give their unions permanence and legal recognition, which brings with it both duties and rights that are critical to maintaining committed relationships. I have gay family members, friends and former colleagues who wish to marry (or have married) their long-term partners, and I respect their decisions.
But while respecting their commitments, I also recognize that this issue has moral and social ramifications, which have not been fully explored much less resolved. I think the only way to do so is through open political debate. Many Americans — faithful Catholics, Muslims, evangelical Christians and orthodox Jews — will continue to oppose gay marriage on moral grounds. But they can do so within the context of religious rites of marriage, while states decide the civil rules.
The Supreme Court would do well not to throw out 2,000 years of tradition in one fell swoop. A better — and more conservative — approach would be to recognize the right of states to determine marriage qualifications by striking down those provisions of DOMA that contradict that principle, but also to hold off on recognizing marriage as a constitutional right.
Let the states decide who can and cannot marry. If recent history is any guide, gay couples will have plenty of venues to seek legal recognition of their unions in the near future. Social mores evolve over time — but they should not be mandated by fiat by nine men and women.