Gay Marriage: Leave It to the Voters
By John Yoo, The Wall Street Journal
In his State of the Union address last January, President Barack Obama attacked the justices of the Supreme Court for making a deeply unpopular decision. He demanded that Democratic members of Congress, who lustily rose to their feet, overrule the court's 5-4 decision and restore more than a century of settled constitutional law.
Mr. Obama was only too happy to resort to such demagogic tactics when campaign finance was the target. Now, thanks to a federal district judge in San Francisco, he must decide whether to follow the same script on another momentous issue: gay marriage.
Chances are that Mr. Obama will try to avoid the gathering political storm by pledging, with all apparent solemnity, to obey the court. But Mr. Obama opposed gay marriage during the 2008 campaign, and when the issue moves up through the federal courts, his Justice Department will have to decide whether to support the many states that agreed with him.
His Supreme Court appointees, Justices Sonia Sotomayor and Elena Kagan, will have to vote on gay marriage in the next few years. And when opponents of gay marriage seek to reverse unfavorable court decisions, as they inevitably will, every member of Congress will have to go on the record regarding whether to send the Federal Marriage Amendment, introduced in 2004 to define marriage as between one man and one woman, to the states for ratification.
For all this, Mr. Obama and the nation have to thank Judge Vaughn Walker. In deciding Perry v. Schwarzenegger last week, he struck down California's Proposition 8, which banned gay marriage, as a violation of the rights of gays to equal treatment under the law. Judge Walker did more than distort settled precedent and sweep aside centuries of practice. He short-circuited the Constitution's democratic process for the resolution of moral disagreements.
A single judge, he elevated himself above the collective wisdom of millions of California voters and the considered judgment of state and federal officials. We all fondly hope that our government acts only to improve the welfare of society. But Judge Walker believes that this job is best done not by elected legislatures or executives, but by a single judge armed only with social science studies.
Judge Walker denied that Prop 8's ban on gay marriage was rationally related to its goals of promoting more marriage and less divorce, as well as procreation and social stability. "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages," Judge Walker ruled. Prop 8, therefore, only represented irrational contempt against gays by the people of California.
Anyone who lives in this bluest of blue states might be forgiven for laughing out loud at the charge of bigotry. Does the charge apply also to Mr. Obama and Hillary Clinton, who both opposed gay marriage during the 2008 campaign?
Judge Walker's social science studies could not have relied on much data, as only a handful of states allow gay marriage and none has done so for longer than seven years. Yet he made extravagant claims. The ban on gay marriage, for example, "exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage." "That time," the court declared, "has passed." According to the court, "gender no longer forms an essential part of marriage; marriage under law is a union of equals." The plaintiffs in Perry "do not seek recognition of a new right," but instead simply the existing fundamental right of marriage.
Imagine if the courts were to apply Perry's approach consistently. Many have observed, including Justice Antonin Scalia in dissenting from the ruling in Lawrence v. Texas (2003), that no logic distinguishes antisodomy laws (struck down in that case) and gay marriage bans from prohibitions on adultery, prostitution, polygamy and pornography, or from age limits on marriage and sex. All laws based on morality would be unconstitutional.
Suppose the courts demanded that other laws survive this heightened test of rationality. Did the stimulus and bailout bills increase economic growth and reduce unemployment? Do the drug laws improve health and reduce crime? Is the redoubled use of drones to kill al Qaeda leaders making the terrorism problem better or worse?
The Constitution does not set up the federal courts as a roving commission of do-gooders to correct all of the nation's problems. The courts, populated by a small number of older lawyers deliberately isolated from the people and inexpert in any field, are likely to cause more social diseases than they cure.
This distortion of the judicial role and rending of the political fabric are wholly unnecessary. The Constitution creates a far better approach to decide contentious moral issues: federalism. Under our decentralized system of government, states offer different combinations of taxes, spending and rights. Citizens can vote with their feet and live in the states that satisfy their preferences. Arizona, Oregon and Hawaii can compete to attract gay couples dissatisfied with Prop 8 (as if California's fiscal mismanagement weren't reason enough to leave).
As "laboratories of democracy," in Justice Louis Brandeis's famous words, states can test a diversity of policies and produce a wealth of information on their effects. If gay marriage depresses heterosexual marriage, increases divorce, or leads to lower birth rates, we will see the proof soon enough.
We trust federalism on other fundamental questions, like life and death. Gay marriage should be treated no different than capital punishment, euthanasia and the basic questions of education, welfare and the family. During the Constitution's ratification, Alexander Hamilton assured New Yorkers that the Constitution would never permit the federal government to "alter or abrogate" a state's "civil and criminal institutions [or] penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals."
Federalism will produce the political durability that supporters of gay marriage want. If states steadily approve, a political consensus will form that will be difficult to undo.
Consider, by contrast, abortion. Roe v. Wade (1973) only intensified political conflict at a time when the nation was already moving in a pro-choice direction. The decision tied the fate of abortion to the whim of the courts. It poisoned our politics, introduced rounds of legislative defiance and judicial intervention, and undermined the neutral principles of constitutional law.
As someone who supports gay marriage as a policy matter, I trust in the ultimate good will and generosity of the American people, if given the chance to express themselves through the Constitution's traditional system for social change. Prematurely nationalizing gay marriage -- either by banning it through constitutional amendment or allowing it by judicial fiat -- only promises a replay of the abortion drama.
Mr. Yoo, a law professor at the University of California, Berkeley and a visiting scholar at the American Enterprise Institute, was a Justice Department official from 2001-03. He is the author of "Crisis and Command" (Kaplan, 2010).