Captain’s Quarters has a brilliant piece on the Massachusetts Supreme Court ruling that the state must accept full marriage rights for homosexuals. This decision only applies to the state of Massachusetts, and the Defense of Marriage act ensures that it cannot be used as precedent for other states, but it’s still a worrying decision.
I’m generally okay with the idea of civil unions for homosexuals. I think the way in which the law generally discriminates against homosexuals in issues like insurance and inheretance law is not a legally acceptable bias. I believe that people should have the option to insure and give inheretance to anyone they want, be it a family member or a partner. I do have religious and moral reservations about homosexuality, but those are my own. I do not believe that there is a legal foundation for discrimination against gays and lesbians.
That being said, this decision is still a mistake. Gay rights will never be accepted by judicial fiat. It is not the position of the judiciary to grant new rights, it is the position of the judiciary to interpret the law within the framework of existing rights. The granting of new rights is a function of the political process. This is an intentional part of the design of the Constitution. The reason why it is so difficult to pass a constitutional amendment is so that issues that will effect all Americans must have some kind of consensus behind them before they become the binding law of the land.
Creating rights through the judicial process sabotages this deliberate system. It ensures that the few can radically alter the lives of the many, and flies in the face of democratic principles. A decision fiat attempts to alter the political landscape without a consensus, which is invariably a destructive process. The 20 year battle over abortion is largely due to the fact that the Supreme Court created a new right out of whole cloth rather than letting the issue be settled on a state-by-state basis.
It’s in no one’s interest to have such a situation develop with gay marriage. If gay marriage is forced down the people’s throats by a judge, it is quite possible that the result will be a Constitutional ban on gay marriage. If that were to happen, the gains made by gay rights groups so far would be erased.
The essence of conservatism is the philosophy that gradual and measured change is infinitely better and stronger than sudden revolution. If the Massachusetts court thinks that the issue of gay rights can be solved from the judicial bench rather than the political process, they are tragically mistaken. This should be a choice of the people, and it is better to try and change popular attitudes to alter the law than to alter the law to change popular attitudes.