Sadder but Wiser? Maybe Not. But We Needed To Read This
There’s been a lot of discussion this week over whether the Supreme Court will rule on the constitutionality or constitutionality as “a matter of law” (or, as Justice Antonin Scalia has suggested, as a matter of “judicial restraint”) of gay marriage bans, particularly the Defense of Marriage Act (DOMA) and California’s Proposition 8, which, according to polls, is being perceived as “the gay marriage revolution.”
I have had this discussion, but I’ve never had one with the other side, so I thought I’d put this one into the public square. (And not just because I’m gay….)
My argument is a relatively old one that I’ve heard before: It’s the government’s place to legislate, and they are responsible for the content and meaning of laws. When the government gets involved in the legislative process, it gives special status to the government’s own rulings — not to the meaning of laws — and to its own interpretations and decisions. This is why, although I don’t expect the Constitution to define marriage in such a way as to prohibit gay marriage, the government and courts may, through precedent, allow or disallow such marriage.
So, my conclusion about the role of government in issuing marriage laws is this: The Constitution isn’t a law. It’s not a series of laws. The government can, and does, legislate marriage in a variety of ways and under various circumstances.
The issue, though, is whether some, some way (or, perhaps, some combination of ways and circumstances) limits the government’s ability to grant special status to its decisions.
As I think about it, I realized that, though I’ve never used the phrase “judicial restraint,” part of what I’m thinking about is a more flexible approach.
The government’s place in the judicial process is not to legislate. It is to interpret the Constitution — or, under the Constitution, the law. And, as the government