A Discussion Regarding Gay Marriage — Part 1

Earlier today, the U. S. Supreme Court announced that it would decide the issue of gay marriage. According to the New York Times, the Court will address the questions of (a) whether the Constitution requires States to issue licenses for same-sex couples and (b) whether States must recognize the same-sex marriages that have been created in other states.

Let that sink in for just a moment. Putting aside whether you support or oppose same-sex marriage, this issue – which has already divided 320 million Americans – will be decided by nine justices (who will likely be divided amongst themselves). In the final analysis, only a handful of people will have any say in this issue – and even then, only a few of them will actually have their way.

As an attorney I have a great deal of respect for our courts. Judges have a tough job when you think about it. Every time they decide a contested matter they will anger at least half of the parties. (And if they are really good at what they do they will anger both sides.) Nevertheless, as much as I respect the courts, I don’t believe that same-sex marriage should be a judicial issue – certainly not to the degree it has become.

By their very design, courts are supposed to resolve disputes. In its purest form a dispute is only between the parties in court. Yes, these disputes set precedents for how courts decide future cases. And yes, when these disputes involve federal or state laws, the exercise of judicial review may have implications far beyond the courtroom itself. Despite this, courts are typically more concerned about the interests of the people in front of them than they are about the interests of non-parties. In fact, courts usually are so focused upon the parties before them that a non-party who wishes to join the case must ask for permission to intervene. (Even then, except for a few specified situations, the court may deny such a request.)

Because courts are focused upon the parties before them, often to the exclusion of non-parties, the judicial branch is not the best arena for deciding issues that have long-term ramifications to society-at-large.  Simply put, when 320 million people have a vested interest in the outcome of a case, the people need to have a say in the matter.  That simply is not practical in a courtroom setting.

When one alters the fundamental foundation of an established institution, he or she risks destroying that institution altogether. It’s kind of like a game of “Jenga.” If you pull the wrong piece out, the whole structure will collapse. This is because certain laws of nature, like gravity, simply don’t care about our aesthetic preferences. Although we may wish to balance twenty or so wooden blocks on a single stick because the resulting structure would be the perfect expression of our individuality, such creativity would likely be insufficient to counter the weight of an unbalanced load.

The same holds for changing the institution of marriage. Any decision to alter this fundamental building block of our society, and even of our government itself, should be made – if it is made at all – through the legislative process where the people, speaking though their elected leaders, can implement policies that advance not only their best interests, but those of generations to come.

Otherwise, a rush to judgment could lead to the demise of a system that is “fundamental to our very existence and survival.” See Skinner v. Oklahoma, 316 U.S. 535, 541 (U.S. 1942).

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