When gay marriage loses in court, whose loss is it?
In a post sympathetic to gay marriage, and one with which I otherwise agree fully, Instapundit writes of a decision by the Tennessee Supreme Court:
This is part of a string of losses for gay marriage advocates …
No, it’s not. Rather, as Dale Carpenter observes, this is part of a string of losses for gay marriage litigants. Many of us who support gay marriage do not support its imposition by judicial decree. Or, to put it another way, not all supporters of gay marriage think their public policy preferences are constitutional mandates.
Every liberal democracy is confronted with the Madisonian dilemma. On the one hand, the majority must have the power to rule, otherwise the society is undemocratic. On the other hand, the minority must have some inalienable rights, otherwise the society is illiberal. The dilemma is that neither the majority nor the minority can be trusted to define the limits of its own claims. This is a problem when writing a constitution.* But it’s not a problem — not for the courts, anyway — once a constitution is written and adopted. The constitution resolves the dilemma as a matter of law. And judges who respect their role in a democracy will look to the constitution, and not to their own political theories, to adjudicate disputes between the claimed powers of the majority and the claimed rights of the minority.
Nothing about the U.S. Constitution — not its design, history or text — prevents the majority from codifying the traditional definition of marriage. In fact, at no time — not yesterday, and not even today — would any American state have ever ratified a constitutional amendment it understood to mandate gay marriage. Gay marriage litigants are not arguing what the Constitution says. They’re arguing what, in conscience or principle, they believe it should say. Fair enough. But they’re arguing in the wrong forum: constitutional courts are not constitutional conventions.
Because many of us understand this, we do not participate in litigation that advances preposterous constitutional claims. And when these claims fail, as they must, the loss is not ours.
*For an explanation of how the framers of the American Constitution sought to solve this problem, see Robert Bork’s The Tempting of America, pp. 139-141, from which I borrow here.
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