I have an op-ed in this morning's Milwaukee Journal Sentinel on the merits of resolving the same sex marriage controversy through judicial means. This week - at Right Wisconsin - I have more extended commentary on the likelihood that Judge Crabb's decision will be upheld (no one can really know) and some observations about claiming that there is a fundamental right to have same sex unions included within civil marriage or that the failure to do so denies the equal protection of the laws.
Ironically, however, I wonder if judicial resolution of the matter does not help the Republican Party. If public opinion is moving to be in favor of extending civil marriage to gays and lesbians (polls suggest so) and if opposition hurts Republicans (not so clear), then removing the option to do something about it effectively removes it as an issue. Republicans can more or less forget about it (because there is nothing they can do) without upsetting the social conservative base (because there is nothing that they can do).
The comments to the op-ed aren't very persuasive. Yes, I understand that other judges have come out the same way. As I pointed out at Right Wisconsin, the decision in Windsor provides some support for that result. The fact remains that it seems like the Supreme Court is headed for a 5-4 decision one way or the other.
In any event, to say that some judges have ruled in a particular way does not mean that they got it right. One commenter points me to section 1 of the Fourteenth Amendment (but I referred to it as the potential basis for a constitutional mandate) and others say that the majority should not vote on the civil rights of the minority. That is true. I agree that the Constitution sometimes requires that judges strike down laws. I said exactly that and, in fact, I think there are some areas where judges have been far too deferential.
But that doesn't tell us what those civil rights are and, unlike the rights of, say, free speech and free religion, marriage or personal autonomy are not to be found in the Constitution.
To draw analogies to race is sloppy. First, it is clear that the Fourteenth Amendment was about anything, it was about race. Moving beyond that requires additional work. Second, deciding that sexual orientation is just like race for purposes of marriage depends on what you think marriage id for. If you believe that it is just about "love, then you may well find that they are analogous. If you think otherwise, then you may find the analogy inapt.
So if you have to answer the big questions first. You have to decide what marriage is for.
On the one hand: Is marriage a way to establish permanent and exclusive relationships as the norm for heterosexual couples ? Has it been structured to negotiate differences between the way in which men and women experience their sexuality in order to maximize the likelihood that children will be raised in intact homes headed by their biological mothers and fathers? Do we think that gender does not matter with respect to the needs, structure and purposes of intimate relationships? Do we believe that extending civil marriage to same sex couples who cannot procreate with each other will really have no effect on the legal contruct and culural understanding of marriage? Is it really the case that all forms of family are equal and we should not believe that children have a right, if possible, to be raised by their biological mothers and fathers?
On the other: Is it really too late - after no fault divorce - to preserve this view of marriage? Would the extension of civil marriage to same sex couples have any incremental impact on the public understanding or marriage? Would same sex couples simply mimic the norms and expectations that have surrounded marriage as we know it? Do we even want to preserve marriage in that form? Even if we do, is it something that law can accomplish?
These are questions on which reasonable people can and do differ. They are not resolved by name calling or rhetoric. We haven't been doing a very good job of discussing them.
But I still don't believe that judges are in a position to resolve these questions. We have to do it.