The Problem With Court-Mandated Gay Marriage

By  | 

As you all know by now, the march towards universally allowed gay marriage continued today. From my understanding, the specifics of the California case create a legal pathway to gay marriage without actually mandating the legalization of the practice. So I want to be clear, this post is inspired by today’s ruling but is not specifically directed at the details of this case.

Let me begin by saying that I support gay marriage and would vote for it if given the opportunity. But I also believe such matters are best decided by the people and not the courts. Without the validation of the public will, gay marriage legalization seems tainted, as if it’s being forced upon the majority by a few activist judges. While many in the gay community get what they’ve desperately wanted, they don’t get what gay marriage truly needs: the approval of the majority.

For many decades now, liberal activists have used the courts to circumvent popular opinion. Instead of doing the very hard but very necessary work of changing minds, many liberal activists simply declare their beliefs to be “constitutional rights” and proceed to convince judges that the will of the people must be overturned.

Now, this is where someone always brings up Brown v. Board and that’s a good point. Except let’s remember that overturning segregation did not require any interpretive gymnastics. The post-Civil War amendments make pretty clear that discrimination on the basis of race is unconstitutional. The court didn’t create a new law where there wasn’t one but rather rectified a long standing violation of an existing law.

Unfortunately, in later cases (most notably Roe v. Wade), courts decided to not merely insure that existing civil rights and liberties were protected, but decided to create wholly new rights to which no elected body or referendum by the people ever approved. Even when the end results are positive, as they are in this gay marriage ruling, the method is flawed and ultimately creates the sense among opponents that the new law is invalid and must be overturned. That not only creates greater desire to politicize the judiciary but creates increased animosity amongst the public.

I believe gay marriage should be a right. But I don’t believe it is a right that currently exists within our system of laws. Utilizing the courts to bring about this social change may be expedient but it is not necessarily the wisest course. For gay marriage to thrive, not just under the law but within greater society, the majority must give its consent. When judges remove that choice and that responsibility from the populace, they greatly inhibit society’s ability to arrive at consensus. We are left to simply stand on opposing sides and shout at one another about court rulings instead of coming together and finding an agreement with which the majority can live.