Same-Sex Marriage Needed to Be Decided by the Supreme Court

Marriage equality is a matter of principle, not policy.

Posted Jun 26, 2015

Today the Supreme Court decided that marriage is a right for all, including same-sex couples as well as opposite-sex couples. The fact that the Court decided this issue itself is sure to be as controversial as the underlying issue, but this was the right way to settle the issue. Rather than being treated as a matter of policy, a bill like any other, subject to endless debate and political posturing, marriage equality should be treated as a matter of principle, grounded in human rights, dignity, and equality. And as such, it is not for the legislature and the administration to decide—it is for the courts.

Many people find this counterintuitive. The prevailing view is that, in order to be legitimate and democratic, same-sex marriage must be ratified by the legislature by elected representatives expressing the will of their constituents. But as legal philosopher Ronald Dworkin wrote, legislatures are intended to handle matters of policy, not principle. Policy involves balancing many competing, equally legitimate interests among the various members of society. Legislatures, comprised of men and women elected to represent these diverse interests, settle these matters through parliamentary procedures of debate and deliberation. Since demographics are always changing, a legislative body that adapts to a dynamic population ensures that shifting priorities will be reflected in policy.

Marriage equality, however, is not a policy issue. It does not involve balancing the legitimate concerns of various interest groups, but recognizing the equal rights and status of all. It demands that, in the spirit of 1967’s Loving v. Virginia, the state-regulated status of marriage be made available to all Americans of consenting age. Same-sex marriage should be guaranteed as matter of justice, which the courts are uniquely equipped to handle. The essential rights at the heart of this debate are too essential to the character of our nation to be left to the politics of the legislative process.

It is not for the legislature to “grant” marriage rights to gays and lesbians when they decide to (or when it supports their re-election). Those rights are theirs by virtue by being citizens of this country under the Constitution. On the other hand, when the Supreme Court decided in favor of same-sex marriage, they did not endow gays and lesbians with a newly created right, but gave legal endorsement to a right that they had all along (albeit never officially recognized).

It is hardly undemocratic for the Supreme Court to correct a mistake of history and extend the reach of basic human rights to all Americans. In fact, such rights are established in the Constitution in order to protect them from popular vote—to insulate them from temporary shifts in sentiment that may endanger those rights. That is the most troubling aspect of North Carolina’s amendment, and it should serve as a reminder of John Stuart Mill’s warning about a “tyranny of the majority.” We do not vote on who gets free speech or who may enjoy freedom of association: these are matters of timeless principle, which must be decided by judges insulated from the political process and popular sentiment.

Some will argue, of course, that the courts are no less political than the legislature, mere puppets of the elected politicians that nominate them to their posts, who hide their political agendas under their robes. (This is most often said about “their” judges, while “our” judges are upstanding guardians of principle.) Nonetheless, judges are more likely than the legislature to focus on principle over politics, even if they sometimes blend together at the margins.

Legislative success may seem more symbolic and gratifying, implying that the people of the United States “decided” that the time has come for marriage equality. But it was never for them to decide: the right to marry is for everybody, and the affirmation of this fact by the Supreme Court today is the only way to proclaim that gays and lesbians have always had the right to marry, even if it took the government a long time to recognize it.

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