If the dissent registered by Justices Clarence Thomas and Antonin Scalia is correct, the U.S. Supreme Court is set to pronounce same-sex marriage a constitutional right later this year. The dissent was issued against a majority decision to let stand a lower court order permitting same-sex marriage in Alabama. And, that is where things get interesting.
In a majority of counties in Alabama, local officials defied the federal court’s order and refused to issue marriage licenses to same-sex couples. This defiance was encouraged, if it needed encouraging, by the chief justice of Alabama’s supreme court, Roy Moore who was removed from the bench after previously refusing to comply with a federal court order to remove a Ten Commandments monument from the state court house. He subsequently won election to the bench. Note to Alabama and other states: Electing judges is a bad idea.
Certain southern states have some history with defying federal court orders, but none of those prior instances turned out very well for the defiant. Segregationist governors stood at the entrances of Central High School in Little Rock and Ole Miss in Mississippi and at the University of Alabama, vowing to block any attempt by black students to enroll, but federal authorities, on orders from Presidents Eisenhower, Kennedy and Johnson, prevailed, the black students were enrolled and almost everyone looks back on legal segregation as a stain on America’s legacy of equality. And, before the struggles against segregation, the Civil War was fought precisely on the issue of state compliance with federal laws. It is tempting to ask if they will ever learn.
Tempting, but not ultimately productive. Our political dialogue has become so deranged at some many levels and on so many questions, lots of people have difficulty differentiating the issues in play. I suspect when asked the straight question – should states be able to defy a federal court order? – most people would agree that is not a good idea. But, if you ask if states should be able to decide, as they have traditionally decided, issued related to marriage and family law, most people would agree. The problem here is that those various sentiments collide and a prudential judgment must be made, weighing the value of our constitutional system and the rule of law, something conservatives normally applaud, versus the value of equality enshrined in our Constitution, versus the federalism also enshrined in that same Constitution, versus the rights of states and localities to set policies that reflect their values, versus the diversity that makes America great. That is a lot of “versus” but the issue of same-sex marriage has occasioned them all.
Conservatives will say that the federal government never should have gotten involved in the issue, They liken the court’s decision to overturn the Defense of Marriage Act and let stand California’s same-sex marriage law to the court’s decision in Roe, a usurpation of authority by judicial fiat, taking an issue best left to a legislative process, where compromise and consensus can be forged, and using court orders to ram through a social policy that is not universally accepted, guaranteeing, as in the case of Roe, that the issue will remain fraught and resistant to compromise for decades. As a general rule, issues such as marriage rights are best left to legislative processes and state jurisdictions, but they can never stay there for long. Gay couples legally married in Massachusetts may move to Alabama: Will Alabama authorities recognize their marriage license as they do for other marriage licenses from Massachusetts? What if a same-sex couple gets legally married in Connecticut, but things do not work out, and they divorce, and the property settlement includes property in Tennessee? Will Tennessee refuse a court order distributing property under the terms of a divorce? It is one thing to ignore a license issued by a town or country official. Ignoring court orders from other states invites chaos. So, no matter how the issue played at the local level, sooner or later, it was going to end up at the U.S. Supreme Court.
Same-sex marriage also is unlikely to play out the way reaction to Roe turned out. Overwhelmingly, young people simply do not see why the state should deny gay people rights it accords to others. This is true of young Catholics and young evangelicals also. Most look around the culture and can detect that our society does not mean by marriage what the Church means by marriage. With liberal divorce laws, it is hard to make the case that our secular legal structure embodies the dual ends of marriage that the Second Vatican Council prescribed, the union of the spouses and the procreation of children. And, marriage confers many rights in our society that it would simply be wrong to deny to people on account of the fact that they are gay. The sensitivity of our young people to the evil of discrimination and prejudice is a thing to be applauded.
Nothing requires us to mock the sensibilities of those who worry that the face of our culture is changing too quickly, the fear born of the fact that they no longer recognize the society in which they were raised. Pope Francis has called the Church to a culture of encounter, and that encounter must work both ways: Those who harbor negative judgments about gay people need to actually meet some gay people and hear their aspirations, and those who dismiss social conservatives as rednecks need to actually talk with social conservatives and hear their concerns. The TV show “Will & Grace” did more for gay rights than any single legal brief and, before that, the horrific suffering of gay men during the worst of the AIDS epidemic made it unconscionable to express the kind of visceral hate that is needed to sustain a societal prejudice.
Fifteen years ago, if the leaders of the conservative political movement, or the leaders of the Church, had signed on to civil unions, this whole issue might have played out differently. There might have been a solution that conferred equal rights on all while still designating the unique friendship we call marriage as something specific, something that does involve the procreation of children and, therefore, something uniquely applicable to traditional marriages. The civil union bus has gone. Before the term is out, it is likely that the right to marry the person of one’s choosing regardless of their gender will be enshrined as a constitutional right. Some may not like that, and obviously many officials in Alabama do not like that. But, if the choice is same-sex marriage or nullification, I will take same-sex marriage.