Policy Spotlight: Gay Marriage

The speed with which same-sex marriage has become an accepted part of mainstream American life is stunning. Massachusetts became the first U.S. state to recognize gay marriage, by order of the state Supreme Court, in 2004. Only eleven years later, when the U.S. Supreme Court ruled in Obergefell v. Hodges that gay marriage was protected under the Constitution, it had already been legalized in thirty-six states. A final victory for a movement which had only begun in earnest in the 1990’s, and in a few decades succeeded in overturning thousands of years of tradition on what constituted marriage.

And in the vast majority of those thirty-six states, as well as at the national level, it was a bare majority of judges, many of them federal judges unelected and unaccountable to the people, who made the ultimate decision to change the longstanding definition of one of the core institutions of human society. By doing so, these judges overturned dozens of laws and constitutional amendments approved by both the elected legislatures of the respective states, and the people through direct referendums.

Overturning these popularly approved laws and constitutional amendments was a direct strike at the idea of federalism central to the American experiment, and the ability of the states to serve as, in the words of Justice Louis Brandeis, “laboratories of democracy”. A central principle of federalism is to enable states to pass laws reflecting the values and policies best suited to their unique circumstances. Often, what’s best for Maine is not best for Georgia or Oregon—and if it is, states are free to learn from the experiences of others and implement similar laws tailored to meet their own unique needs. The same process was happening organically with the question of legalizing same-sex marriage, when federal judges—culminating with the Supreme Court and the Obergefell decision—stopped it cold and forced an identical solution on all fifty states.

Gay marriage was already winning the public debate—in 2012, four states approved referendum legalizing marriage between two people of the same gender, the first time the issue had actually won at the polls. If the majority in Obergefell had instead upheld the principle of federalism by allowing each state to continue making their own, democratic policies, it’s probable the majority of the country would have come to the same conclusion over time, with the added benefit of having people arrive at the decision freely, rather than being coerced into accepting a particular point of view.

All this is to say that both the conservative and tolerant policy with regard to gay marriage is continuing to allow each state to decide for itself whether or not to continue to recognize the practice. If Obergefell had been decided correctly this would be the current national policy, but as it is it will necessitate overturning that decision, whether by constitutional amendment or a later Court decision, both of which are obviously unlikely. But the end result should be promoted regardless, and the basic lessons of Obergefell can easily be applied to other, more current, debates, such as forcing individuals to perform and cater for same-sex weddings and bathroom use for transgendered people.

It’s also an easy policy to get behind and form compromises around, at least in theory. Supporters of gay marriage or abortion regulation or anything else will be comforted with the fact that no federal action will be taken to dissuade their favored policies in states which implement them, and vice versa with opponents of those policies, in states which ban same-sex marriage, or offer unregulated access to abortion.

In reality, the Left, which favors a top-down approach in which dissenting views are not to be tolerated, would not be content with such an arrangement for long. But this doesn’t change the fact that such an approach to issues like gay marriage or transgender bathroom use is the most tolerant option in respecting different viewpoints, and is also most in keeping with an original interpretation of the Constitution. Aggressively promoting this approach also has the added benefit of pushing back against the liberal narrative of intolerant and discriminatory conservatives, by pointing out the hypocrisy of a movement which itself is biased and discriminatory against any and all opposing opinions.

Above all, however, when long-established social norms such as the definition of marriage or appropriate bathroom use are challenged, it should always be the people and their elected representatives who make the final decision, not a few unelected oligarchs dictating what is best for the entire country.