In May 2004,the Massachusetts Supreme Court made gay marriage the law of the land. By a handful of votes, the court undid centuries of law and custom. In fact, anticipating this possible ruling, the state legislature had voted two months before for a constitutional amendment banning gay marriage. This is exactly the kind of judicial activism that mobilizes conservative and moderate voters. When conservatives say that arrogant elites from the coastal cities are imposing their views on everyone else, this is what they are talking about. I believe that this issue tipped the 2004 election from a close race to a Republican walk. Deciding major social issues through the courts is wrong 99% of the time. Debating social issues is what we have legislatures for. This includes the inevitable compromise and “sausage making” that legislatures must do, and often must do behind closed doors.
Now the Massachusetts legislature has voted again on a moderate constitutional amendment, which would ban same-sex marriage, but create very similar civil unions. To the surprise of many, the amendment failed, 157 to 39. Part of the failure was because conservatives voted against it as too much of a compromise. They are working an amendment for the 2008 ballot, which would ban same-sex marriages with no civil union softener. The main reason the amendment failed this time, I think, is because the moderate center of the legislature didn’t have the stomach for the ban. They think marriage really is about a man and a woman uniting for life, especially to raise their children. But they also think that letting the small number of homosexuals who want to marry wont really hurt the commonwealth of Massachusetts. The great majority of people can still marry and live in the usual way even if a few do it another way.
Now, this is not the way it will play in all states, or even in most states. If, for example, the Kentucky legislature were forced to vote on a constitutional amendment to keep prohibiting gay marriage, I am sure it would pass, and would be a popular measure in the state. The fifty nifty states are different from one another, and a good thing, too. Moreover, public opinion, even in the most extreme states, changes over time. Massachusetts was very hot about gay marriage when it was first imposed by the court, but the ardor is cooling. I think it likely that, when it comes time to certify the proposed total ban over the next few years, there may not be enough votes in the legislature to even get the amendment on the ballot. Time and democratic competition will tell.
I believe that we are all better off when these changes are debated, compromised, and enacted in the legislature, not in the court.