On October 6, the U.S. Supreme Court declined to hear seven appeals in same-sex marriage cases that have percolated up through the lower courts. After several years of federal district and appellate courts overturning same-sex marriage bans, the Supreme Court declined to rule in all seven cases, thus sounding the final bell in what many see as a critically important round of legal battles. Same-sex marriage is now legal in such far-flung and politically disparate places as Utah, Virginia and Wisconsin. Although the battle seems to be over for now, many states still lack marriage equality, and this is unlikely to be the last we have heard on this issue. On Fox News Special Report, Brit Hume unequivocally stated in his analysis that there is “no political momentum” for the opponents of marriage equality.
For proponents of same-sex marriage, the Supreme Court’s refusal to hear these cases has marked a turning point in the struggle for marriage equality. Short of deciding to take on these cases and clearly define what defines “marriage,” at least in this court’s opinion, allowing the lower courts’ rulings to stand is the closest thing to settling this issue as the country has gotten to date.
Opponents of same-sex marriage decry the courts being involved in this issue in any way, citing instead their desire to have the issue settled at the ballot box or on a state-by-state basis.
And somewhere in the middle of this, the Republican Party is deciding what it wants to do about same-sex marriage. Or is it?
The party of limited, less intrusive government seems to have a schizophrenic reaction when it comes to certain social issues, chief among them same-sex marriage. In this instance, many party leaders suddenly support the role of the courts in maintaining the notion that marriage can only exists between a man and a woman. To support this argument, someone invariably brings up Biblical references to support their view of “traditional marriage.”
It’s interesting to me that these same people don’t also cite the stoning of prostitutes as a justification for domestic abuse or the presence of slavery in the Bible as a justification for slavery in the United States some 2,000 years later. But then again, that’s a problem with literalism.
There are some voices, notably from the libertarian wing of the party, calling for this issue to be left up to the states. The Founding Fathers, as Rand Paul notes, didn’t “register their marriages in Washington, they registered it locally at the courthouse.”
That’s true, Senator Paul, but that same courthouse is probably where they registered their purchases of chattel slaves. By the “home rule” logic, since the founders bought their slaves in Richmond or Atlanta and not in Washington it was, presumably, alright.
Obviously, this logic is flawed when applied to a question of civil rights. Without the intervention of the federal government vis-à-vis the Civil War, it is likely that slavery as an issue left up to the states would have lasted decades beyond its abolition in the 1860s. Further, it is unlikely that desegregation would have taken place at the clip it did without the influence of the federal government and the courts. Most reasonable Republicans and Democrats alike agree on this.
Therein lies the rub of citing the only the founding, or for that matter the Bible, as singular evidence for action one way or the other in public policy debates. While both the founding (and its documents) and Judeo-Christian culture are important and valuable sources that inform our political world, much has changed over the past two centuries and, more so, the past two millennia to allow either source to stand in the way of what is the civil rights issue of our day.
The party which finds its intellectual roots in the abolition movement of the mid-nineteenth century has an obligation to carry the mantle of civil rights into the cultural debates that characterize our times. The Democrat Party does not own the high ground on these issues and Republicans should be more conversant, and intellectually honest, about their approach to same-sex marriage.
As recently as 2004, same-sex marriage was opposed by 62% of the public. In 2012, that number had shrunk to only 40%. While that is a dramatic, rapid, and almost unprecedented shift in public opinion on such a serious cultural issue, actual support for same-sex marriages has not shifted in a similarly dramatic fashion. This suggests that the public is taking a measured, or unsure, or “live and let live” approach to same-sex marriages.
While Senator Paul’s stated position is admirable from a smaller government perspective, and essentially addresses the political ramifications of same-sex marriage being overwhelmingly supported in California but not so much in Mississippi, it ignores the fundamental proposition of marriage equality as a civil rights issue. To remedy this, the courts are necessary when public action at the ballot box or through the legislatures would fail to guarantee basic civil rights to all citizens.
As a proponent of small government I am happy with the Supreme Court’s decision not to hear these appeals. As a supporter of marriage equality, and thus civil rights, for all Americans, I am not happy that the Court opted to punt on this question.
In 1950, African Americans in the northern cities may have faced less discrimination than blacks in the south. Because some blacks were almost fully integrated in certain parts of our country does not excuse the fact that in other parts they were discriminated against and, worse yet, lynched. By its very nature marriage equality must be the law of the land in every state, or there is no marriage equality in the states in which it currently exists. The Republican Party can refine itself as the party of inclusion and small government, and thus continue to be in the vanguard of civil rights issues, by reexamining its collective stand on this issue.
It is politically the smart thing to do. It is the morally right thing to do.