We Could Have Had Gay Marriage Without Shredding the Constitution

When the Obergefell ruling came out announcing that gay marriage would be legal across the United States, there was much rejoicing. Initially, I was amongst those who were unconditionally pleased with the ruling. However, I read the opinions, and I found Chief Justice Roberts' opinion to be unassailable. So I changed my mind. I explained why here. I tried to make it clear that my problem with the decision was not the policy behind it (I am 100% in favor of allowing same-sex marriages) but rather the mangling of the Constitution that occurred in the majority's attempt to implement that policy. So I think it's only sensible for me to explain how we could have achieved same-sex marriage nationwide without making a mockery of the Constitution in the process and opening the door for all sorts of bad policy to be enforced in the future through the Due Process clause of the 14th Amendment.

Prior to Obergefell, the overwhelming momentum was towards redefining marriage to allow any two people to marry. Even Iowa had same-sex marriage. Iowa! The land of corn and ... musical theater, apparently. The voters who were against same-sex marriage were old and getting older by the day (still are). In short, gay marriage was going to win a war of attrition. I taught high school government classes before I started law school, and I told the first class of seniors that I ever had (in 2007) that they had better make their peace with same-sex marriage if they hadn't already because it was inevitable. At the time, only Massachusetts allowed same-sex couples to marry.

The rapid expansion of same-sex marriage to more than ten states within a few years surprised many people, myself included. So for me, the clear method of nationalizing gay marriage was to keep pushing through laws to legalize marriage for any two people. It was working. There was no reason to stop. Hooray democracy! I don't think there is any question that within ten years from now, nearly every state would have had legal same-sex marriages protected in their constitutions or by statute.

The other option, which could have been pursued concurrently, would have been to amend the Constitution to create marriage as a freedom that must be given to any two people not related by blood and of the age of consent. I know that amendments are not easy to get, but again, people of my generation and younger are overwhelmingly in favor of same-sex marriage. It was only a matter of time before we could have gotten this. And really, if we hadn't and Alabama and Mississippi were holding out until the end, would that really have been so horrible? If you are gay, what the hell are you doing in Mississippi anyway?

And that's how I would have done it. Why? First, because it's legitimate. Thanks to the Supreme Court, we've got another Roe v. Wade style mess on our hands. People against gay marriage will feel (rightly) that their voice was ignored and over-ridden by one person, Anthony Kennedy. That tends to make people resentful and bunker down rather than opening their minds or at least producing acquiescence. Don't believe me? Look at how people have reacted to this decision. Presidential candidates are talking about overthrowing the Supreme Court in one way or another. Texas is telling county clerks that it's okay not to issue marriage licenses to gays or anyone else.

Do you remember anyone in Iowa saying that the State of Iowa was corrupt and needed to be put in its place after they voted to legalize gay marriage? I don't. There was no uproar like we are seeing now. And it's not like Iowa doesn't have any goofball homophobic conservatives. You would have thought that everyone in Iowa just woke up one morning wearing rainbow pajamas and feasting on Lucky Charms (but only eating the rainbow marshmallows) and singing the Rent soundtrack from the top of their collective lungs. People have a way of accepting democratic decisions. The Supreme Court, however, is not democratic.

Second, my way would not have opened up the door for judicial idiocy. There's no intelligent argument that the people who wrote the 14th Amendment wanted it to protect gay marriage. That's absurd. So now, what else can we make up that the 14th Amendment protects? What about the right to pay your workers whatever you want? What about the right to polygamist marriage? What about the right to listen to any music you desire regardless of the copyright protection? It's just a silly idea to have the Supreme Court manufacture what the Constitution says because although you might have liked their bullshit this time, the next time they do it, the bullshit might not smell so nice. The era of Lochner was supposed to be behind the Court. Well, now it's back. And we could have done right by gay Americans without re-animating that corpse. I hope I am wrong, but given that polygamists are already heading to city halls to get married, I don't think I am.

NOTE: It has been pointed out to me that Iowa achieved marriage equality through a unanimous decision of the Iowa Supreme Court. I  forgot and should have looked that up. My point is the same. Any state that voted for gay marriage has conservatives, and it hasn't broken apart. Also, a unanimous decision of a state's high court is still better and more democratic than Anthony Kennedy unilaterally making the choice for the entire country (Iowa has retention elections for their justices). Shout out to Chris Bagley for the correction :).