The Supreme Court this week took up two important marriage cases. The Justices during oral arguments seemed particularly uncertain about where the rush to gay marriage was taking America.
Justice Kennedy, in particular, seemed dubious about refusing to hear the case on the grounds it would leave the voters of California defenseless when government officials decline to defend a ballot initiative. He also expressed concerns about taking a narrow 9th Circuit decision and turning it into a right to gay marriage: "the problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff."
Here's my advice to the Justices: respect the American people enough not to drag our Constitution over that cliff.
Half or more of the American people believe marriage is the union of husband and wife for a reason: these unions can make new life and connect children to the mother and father who made them. Seven million Californians voted to uphold this classic understanding of marriage. To suddenly discover a "right" to gay marriage in our Constitution is to take away something very precious from people like us: the right to use the democratic process to make our case to the American people.
What Prop 8 opponents are asking the Court to do is label the millions of Americans who do not believe gay unions are marriages as "irrational bigots." But doing so will not end the culture wars, it will entrench them, just as Roe v. Wade was not the end of the abortion debate in this country. Do not ask the American people to believe that the Constitution written by our founding fathers in 1789 requires gay marriage.
After listening to the oral arguments, I will go out on a limb and predict that the majority of this court is not going to overturn Prop 8. Neither Justice Roberts nor Justice Kennedy appears to have the stomach for such a sweeping transformation of our Constitution at this moment in history.
On March 7 in Sacramento, Justice Anthony Kennedy, when a library was named in his honor at a federal courthouse, made the case that too many moral issues are being referred to the courts: "I think it's a serious problem. A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say. And I think it's of tremendous importance for our political system to show the rest of the world - and we have to show ourselves first - that democracy works because we can reach agreement on a principled basis."
On this he is right. It requires no courage, at this point in history, to side with gay marriage advocates. Respecting the rights of the millions of Americans who disagree, and respecting the boundaries of our Constitution, is staying on the right side of history.
The millions of Americans who respect marriage and believe children deserve a mother and a father urge the Supreme Court to respect the Constitution, respect the rights of all Americans, and respect those who are outside the Courtroom standing up for the classic understanding of marriage as the union of husband and wife against those who seek to change its meaning and purpose without the consent of the American people.
We don't need another Roe v. Wade. We need a Court that respects the rights of all the American people, and not just the politically fashionable.