The Long Fight for Marital Equality

Last week, on my national/global affairs blog, Gray's Gazette, I posted twice concerning Hollingsworth v. Perry - taking what is, for me, a difficult position.  For constitutional reasons, as well as considerations of practical politics, I believe progressives and liberals should hope for a Supreme Court decision striking down California's Proposition 8 - but not creating a nationwide right to same-sex marriage. 

I fully support the legal recognition of same-sex marriage, but - unlike many who do - I believe this step should not come as the gift of unelected judges, but as the hard-won victory of citizens acting through the political process. 

A political victory might not come as quickly as victory by judicial decree, but taking the hard road would have three advantages. 

First, it would require advocates of marriage equality to organize at the state level.  Liberals and progressives have neglected this hard work for the past four decades, with negative results which extend far beyond this single issue.  It's time we got our hands dirty again.

Second, a delay would show respect for the sincerity of 40% of our fellow citizens who have yet to accept the idea of same-sex marriage.  By engaging these folks in public debate, supporters of change would develop their powers of persuasion and honor the democratic process.

Finally, and most importantly, hesitation by the Court to announce a new fundamental right - at this point in our history - would demonstrate the sort of cautious, deliberate approach which the Founders envisioned when they established this republic. 

For, if the Founders were revolutionaries, they were patient revolutionaries.

In time, of course, the Court might properly recognize this new right.  I am absolutely persuaded that the natural rights philosophy which informed the American Revolution embraced the idea that liberty and equality would expand with the passage of time - in part through the discovery of new rights.  

Our Constitution reflects this philosophy.  The Founders inherited it from England's Glorious Revolution of 1688.  As men and women of the Enlightenment, they were part of the trans-Atlantic discussion which developed it.  During three tumultuous decades, America's revolutionary statesmen demonstrated that the philosophy had practical application - as the justification for independence from Great Britain and the creation of a new, republication nation.

The Founders' philosophy held that every individual is vested with essential, natural  rights inseparable from his or her humanity - and that these rights can be discovered by the exercise of human reason. 

Mr. Jefferson said it far more eloquently, in the Declaration of Independence.  But it is useful, on occasion, to paraphrase his words - if only to rediscover what they actually say.

A belief in natural rights, discoverable by reason was the cornerstone of our Revolution.  This philosophy has re-emerged throughout our national history - during the anti-slavery movement; the movement for women's suffrage; the Populist and Progressive movements; the civil rights movement; the feminist movement; and in today's movement for GLBT rights. 

The idea of natural rights - expanding over time - is woven into the very fabric of our Constitution.  No interpretation of the Constitution - no understanding of the men who drafted it - makes sense without reference to this idea. 

This is true, first, because our Founders were products of the Common Law tradition.  As lawyers, as judges, or as businessmen continuously involved in litigation, they were thoroughly familiar with the notion that courts can discover new legal principles through the rational application of existing legal concepts to new circumstances.

This tradition is still very much a part of American jurisprudence.  For example, when the Supreme Court applies the First Amendment's freedom of the press to such later technologies as radio, television, and the internet, it does so by applying common law principles.

Moreover, as a generation shaped by Enlightenment philosophy, the Founders took human progress more or less for granted.  They had witnessed, in their own lifetimes, the growth of freedom in the Atlantic world.  It seemed entirely plausible to them that new liberties would continue to be discovered by future generations, through the use of human reason.

The Founders' Common Law background and natural rights philosophy - which permeate the Constitution and find explicit expression in the Ninth Amendment - make utter nonsense of the idea of "original intent", upon which Justice Scalia and others so often pontificate.

The "original intent" of the Founders was that their Constitution would create the framework of an ever-expanding "empire of liberty".  They expected their descendants to continue to discover new fundamental rights.

That said, the Founders would almost certainly have counseled patience to those of us working to create new rights in today's very different world.  They had taken twelve years to decide to declare their independence from Great Britain - twelve years which had given them time to be certain they knew what they were doing, why they were doing it, and what sacrifices they were willing to make.

For all these reasons, I sincerely believe the Supreme Court should defer creating a new constitutional right at this point in our history.  I'm also fairly sure that's what will happen.

Given Justice Kennedy's pivotal role in this case, when the Supreme Court hands down its ruling in Hollingsworth v. Perry, I suspect that the Prop 8 will either be sustained (5-4) or struck down (5-4 or, perhaps, 6-3) in a way that only impacts California.

If Prop 8 is struck down, it will be a great victory - adding the most populous state in the nation to the growing ranks of states recognizing same-sex marriage.

But either way, the long-term battle for marriage equality will most probably be left to people of goodwill in the 40 or 41 states which aren't there yet.

I fervently hope activists for marriage equality - and their liberal and progressive allies - will be undismayed.  They will need to go back to work organizing to elect state legislators who will enact the necessary statutes, or proposed the necessary constitutional amendments, on a state-by-state basis.

The first battleground will be Virginia, where conservative Republicans hold almost two-thirds of the House of Delegates - all subject to election in November. 

Time to saddle up.