Justice for Marriage Rights: It’s not for the majority to decide!

marriage as a right for all citizens in this country

Posted Aug 12, 2010

Reading the publicity on the gay marriage decision I am struck by the fact that the losing side of the argument believes that gay marriage should be decided by referendum. If people vote for it, it should happen, if people don't, it shouldn't.

That is the way people used to feel about slavery. There were slave states and free states. And that is also the way people used to feel about interracial marriage. Let each state decide for itself. Interracial marriage was illegal in some states and legal in others. Not until the civil war did we say that our nation could not endure with slavery- no matter what the slave-legal states wanted -and not until the relatively recent Supreme Court case of Loving v Virginia, did interracial marriage become legal throughout the United States.

The judge, who decided the gay marriage case, decided it in this tradition: that some things are given to all citizens as a basic right and that not giving same sex couples the ability to marry violated the 14th amendment. He was not thinking about whether or not gay marriage was popular- he was thinking about whether there was anything except tradition (assuming the separation of church and state) that mandated maintaining the status quo. A large number of experts in this trial, as in others, said there was no abiding interest that the nation had that supported blocking the right to marry. The judge agreed: and so the stage has been set for the subsequent appeal and the debate on same sex marriage will go on to the next round.
Personally, I think the dye is cast. I cannot tell you when the Supreme Court will affirm the lower court, it may be this round, it may be another. But powerful written opinions are accumulating (Hawaii, Vermont, Massachusetts, Iowa, etc) and they support the idea of marriage as a right for all citizens in this country.

These are decisions built on interpretations of constitutional law and they are resented and refused by people who believe this should be settled by a vote of the people. But while I don't think civil rights should be decided by referendum, the fact is there will be soon be a majority of our population who believe in gay marriage. Many polls have shown that the majority of men and women under 25 approve of gay marriage-and so people who think it should be a popular vote will eventually lose by that method of justice as well.
We have changed as a nation. We have extended the entitlement of life, liberty, and the pursuit of happiness to many classes of people that were disenfranchised for most of the history of this country. We have become more sophisticated, tolerant and informed about race. We understand that love transcends the boundaries of religion, race-and now gender. These issues have always been difficult for us, but over time, they become easier and easier. I think this new decision is a victory for our humanity and for justice. I think over time that most Americans will agree with me. Whether or not that will be before or after a Supreme Court affirmation of same sex marriage, I do not know. But it will happen.

Pepper Schwartz, PhD