Call it the Scalia standard.
More than two decades ago, the Supreme Court justice suggested that one measure of how free societies resolve contentious issues is whether losers have “the satisfaction of a fair hearing and an honest fight.” He was writing about abortion, but his words are worth recalling in light of two new high court rulings involving marriage.
The first and most substantive came in a case called United States v. Windsor. Here the court struck down as unconstitutional the bipartisan Defense of Marriage Act. It did so holding that the law’s “purpose and effect” was to “disparage and injure” married gay couples. This ruling has drawn the most attention, partly because it cuts more to the substance of the marriage argument, and partly because of the bigotry its author, Anthony Kennedy, imputed to opponents.
The companion case involved a technicality over Proposition 8, the successful 2008 California referendum that defined marriage as a union between a man and a woman. The court did not address the substance of Prop 8. Instead, it held that those defending the proposition did not have the legal standing to do so, and it featured liberal and conservative surprises on both the majority and dissenting opinions.
Like the arguments over abortion, marriage provokes passions. On the one side, gay citizens who want to marry believe that laws prohibiting them from so doing violate a basic civil right. On the other side, the people who oppose same-sex marriage because they believe it undermines the institution hold a position that President Obama held until only last year.
The beauty of our system is that it leaves the great moral disputes to be resolved by the people. For that to work, however, it depends on more than legislatures. It also requires proper modesty from the courts, and an executive branch that meets its own responsibilities. What troubles us here is that these court cases each reward executive branches at the state and federal levels that did not defend laws they disagreed with.
Wherever you come down on marriage, the ugliness we saw in California when Mormon churches were vandalized and some Proposition 8 supporters were forced out of their jobs does not suggest a “fair hearing.” Throw in a recent Pew study confirming the overwhelming press bias for same-sex marriage, and it looks like yet another issue where some will push their personally preferred outcome no matter what stands in their way, even if what’s standing in their way, as Scalia puts it in his dissent, is “the people of We the People.”
Our fear is that, far from returning marriage to the states and the people, these decisions put us down the path of taking the issue out of the democratic process.