“My criticism of Roe [v. Wade] is that it seemed to have stopped the momentum that was on the side of change.” —Supreme Court Justice Ruth Bader Ginsburg
The State of Affairs for Gay Marriage, Prior to the Supreme Court Ruling
It could be argued that, in the court of public opinion, the acceptance of gay marriage was beginning to win, prior to the Supreme Court’s rewriting of the Constitution to dictate that every state must allow gay marriage. Indeed, there has been a great deal of political momentum behind this particular issue.
But Amenable People Differ on the Issue
This is not to say that everyone agrees that validating committed relationships among gays means that the state should be allowed to force Americans to go against their religious values. Only statist Democrats, who do not believe in civil rights, hold to that notion. Most Americans do not believe that the addition of a marriage right for gays implies a subtraction to the religious rights of conscientious objectors to gay marriage. In other words, your right to have a gay marriage does not give you the legal right to force others to attend your wedding or to cater to it. (Read more about this issue here: https://eaglerising.com/11517/government-overreach-killing-freedom-religion/.)
Popular Persuasion or Government Dictate: Which Is Better?
So, if gay marriage has had momentum on its side, then what is the harm in having the Supreme Court speed up the process, by settling the issue by fiat for once and for all? Why not just simplify matters and save time?
Actually, it would have been much better, if the political process had been allowed to run its course. It is never good for an outcome to be forced on people, because there is a tendency, once such a precedent has been set, for government to go back to that precedent again and again in the future, and not for the purpose of dictating things that are already becoming popular. A precedent that was set using an issue palatable to many will almost always be used in the future to force unpopular—even damaging—ideas on the public.
Learning from Justice Ginsburg
It might seem strange that Justice Ruth Bader Ginsburg, of all the jurists on the Court, has shown valuable insight into the matter of judicial restraint in the past. And the Supreme Court should have employed such restraint with regard to the gay-marriage issue. Ironically, Ginsburg herself was one of the justices voting in favor of the gay-marriage ruling, after having said the following with regard to Roe v. Wade: “Roe became a symbol for the right-to-life movement. They have an annual parade now every year on the day in January when it was decided,” Ginsburg said. “The (abortion) cases now are all about restrictions on abortion and not about the rights of women.”
Ginsburg went on to explain that, because of the Court’s not exercising judicial restraint, opponents of abortion rights (on what had been the losing side of this political issue) were able to freeze the debate in place and eventually swing the momentum back the other way. In other words, the debate on a woman’s right to choose an abortion was on the verge of being won—state by state—as the debate played out among the American people over time. But the High Court short-circuited the debate—aborting the process, as it were—before a national consensus could be fully achieved. (Read more on Ginsburg’s Roe v. Wade views here: http://www.abajournal.com/news/article/ginsburg_expands_on_her_disenchantment_with_roe_v._wade_legacy/.)
A political win, not forced on the public, but in accordance with the will of the majority, is a more lasting victory. Broad consensus is always preferable, since this maximizes liberty for the people and minimizes dissatisfaction with the result. Forcing an issue prematurely often gives birth to a backlash, putting at risk much of the goodwill that had taken so long to develop. Many potential allies will now want nothing to do with the issue, and many who had come to be in favor of the issue might turn away from it.
The Caprices of Tyranny
The implementation of new policy is much safer being carried out by a persuaded public than being entrusted to the will of a tyrannical oligarchy. A democratic republic is never as fast in deciding matters as an oligarchical dictatorship, but, once decided, the matter is generally settled and rarely undone. An oligarchical dictatorship, on the other hand, can change things capriciously, making one day’s winner into the next day’s loser.
Unintended Consequences: Could a Future Court Allow Sharia Honor-Killings of Gays by Muslims?
What if the Supreme Court made a ruling in favor of a Muslim man’s killing of his gay son, in accordance with Sharia Law? What if the Court decided religious honor killings by Muslims—which are not rare events by any stretch of the imagination—are protected under the Fourteenth Amendment’s Equal Protection Clause? Regardless of the fact that the Constitution says nothing to condone Islamic honor killing, the Court could always rule that Sharia Law has a right to equal protection, even in contravention to the Supremacy Clause of Article Six, which designates the US Constitution as being the supreme law of the land. If the Court can rewrite the Constitution once, then it can do so again.
Equal Protection: What Does It Mean?
The wording of the Equal Protection Clause of the Fourteenth Amendment of the Constitution can be found in this sentence from Section One of that amendment: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The original meaning of this amendment—before the Supreme Court began changing through its Incorporation Doctrine—was that each state was obligated to protect every individual citizen of the state equally, in accordance with state law. This wording was meant to ensure that black people, as new citizens of the US and of the sovereign states in which they lived, would be allowed the same rights and protections as every other citizen. Of course, it was intentionally worded so it would apply to everyone. (Read more on the Incorporation Doctrine here: https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights.)
The Supreme Court’s rewrite of the Constitution, with regard to gay marriage, seems to be saying that gay citizens who have been married to each other, by virtue of having been granted marriage licenses in a gay-marriage state, deserve to have their marriage licenses recognized by states that do not issue such licenses currently. This gives them equal protection, along with straight couples in that state who have traditional marriage licenses. The ruling also means that non-gay-marriage states must treat their gay citizens the same as non-gay citizens by also issuing marriage licenses to gays.
New Rules for Licenses
This rewrite of the Incorporation Doctrine does more than simply apply the federal Bill of Rights to the states. (The Bill of Rights originally restricted only the federal government from interfering with regard to the civil rights it enshrines—as in “Congress shall make no rule. . . .” and not “The States shall make no rule. . . .”) The gay-marriage ruling could now expand the Incorporation Doctrine to encompass state-specific licensing laws to each and every other state. At face value, it would imply that a license issued in one state is now to be held as valid in every other state.
Do Concealed-Carry Licenses Now Merit Equal Protection?
So, if I am living in California and having a problem getting a concealed-carry license in my county, can I then bring a court action to force the State of California to give me a concealed-carry license, because they are being issued in other states? And, since some states are much more permissive in the types of guns that can be obtained and carried, does that mean every other state must now default to the most permissive guidelines, in order to guarantee equal protection for all?
What about a teaching license, a medical license, or a law license? And what about the fact that Illinois requires a license to braid hair, which is unique to Illinois? Does this mean that all other states now must issue hair braiding licenses, as well? Lawyers can only delight at the prospect of getting to work in this new area of Constitutional law.
A Brave New World
So, beyond the simple tyrannical nature of this latest ruling, there is also much in the way of chaos that it creates. The unintended consequences of this ruling promise to usher in a brave new world of Constitutional uncertainty. But the unpredictability that this world might bring cannot be desirable for people—even gay people—who may wish to live in a peaceful, predictable world where life can be easily planned and where the people’s negotiated agreements, written into law, can be counted on to remain in place.
The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by EagleRising.com