SSM AND THE COURTS: Barry Deutsch

Eve Tushnet has some questions about marriage and the courts.

1) If same-sex marriage is a fundamental civil right, should it be imposed by courts over & against voters' wishes?

Assuming that it is a fundamental civil right, then yes, it should be. It is the job of the courts to protect civil rights from the wishes of the majority.

To me, this is the central issue of Goodridge and other court cases regarding SSM--and an issue that SSM opponents don't seem eager to address. Does equal protection of the laws apply to lesbians and gays, or not? If lesbians and gay men are entitled to equal protection of the law, then same-sex marriage is inevitable.

By pursing constitutional amendments, SSM opponents implicitly admit that federal and state constitutions, as currently written, will lead courts to find that lesbians and gays have an equal right to marry. Same-sex marriage opponents are unable to provide a rational basis for discrimination in court; so they're trying to alter the various constitutions so that equal protection laws no longer apply to lesbians and gays (at least regarding marriage and civil unions). ...

Fear of the unknown is powerful stuff; and right now, for most Americans, same-sex marriage is an unknown. For that reason, I think it would be a terrible mistake for SSM to be imposed on the whole country by the Supreme Court at this time. While SSM is still a frightening unknown, most of the country will not accept it. There would be a nationwide rebellion against so-called "judicial activism," and quite possibly a federal anti-gay constitutional amendment.

To avoid this risk, legal SSM should begin with just a few states allowing legal same-sex marriage--and they should be relatively liberal states, in which at least a large minority is already willing to recognize SSM. Five or ten years from now, if nothing goes wrong, same-sex marriage will be a rather dull status quo in Massachusetts, and perhaps in Oregon, Washington, and New Jersey as well. Inevitably, there will be some married gay celebrities, and some TV shows will include flattering portrayals of same-sex marriages. Once SSM has become a boring norm, same-sex couples will have gained "marriage that's socially as well as legally recognized." And after that, nationwide recognition will be just a matter of time.

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posted by Eve at 5:00 PM | link

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