A few days ago, Glenn Reynolds wrote of Tennessee’s proposed Constitutional amendment aimed at protecting marriage from those who believe that individual rights should determine how the government treats the citizenry. Mr. Reynolds and I are in agreement that constitutional amendments for this question are a bad idea, but I mostly added on that last bit as a summary of my own feeling because I don’t care for parts of his explanation. Consider:
My own sense is that this sort of thing belongs in the political sphere, and that efforts to insulate it from the political sphere, either by judicial fiat or constitutional amendment, are a bad idea.
UPDATE: This is part of a string of losses for gay marriage advocates, reports Dale Carpenter, who has detail on what’s going on. As I’ve noted before, it seems to me that the big push on gay marriage came before the public was ready. You have to educate first; there’s been good progress on public attitudes toward gays, but it actually seems to go faster when gay marriage advocates aren’t getting a lot of publicity and calling people who disagree with them bigots. (Kaus has noted this, too — scroll down due to lack of permalinks at Kausfiles.) Honey, vinegar, and all that.
My own feeling is that Americans are basically fair, and will come to support gay marriage on their own given a bit of time. And I think that — despite claims that they’re really just opposing “judicial activism” — gay marriage opponents fear that I’m right.
I understand his point, and I believe he’s right that Americans will eventually support same sex marriage on their own. I also think he’s right in describing what will be most effective, given our current political atmosphere in which selling out one group of Americans is an accepted strategy for buying another, larger group. That’s a practical realization of how malignant our political climate remains. We shouldn’t pat ourselves for working within that system, though.
The larger, more troublesome challenge in accepting that thinking is that this flawed climate should invalidate a Constitutional approach to achieving equality. It’s ridiculous to assert that the opinion of a majority of Americans matters in this. Why should a segment of Americans wait for future generations to grant them fundamental rights that should be respected now? We live in a republic based on individual rights, not a land where mob rule should dictate how our courts interpret our Constitution. Judicial fiat or not, the role of our judiciary is to interpret the Constitution, thereby protecting the individual rights of every citizen from government and other citizens. Only in not faithfully administering its duties is a court engaging in judicial activism.
The legislature may be the best location for this fight, but that doesn’t make the courts a bad place for it. The majoritarian mentality consuming the willingness of our elected representatives to uphold the Constitution indicates the fallacy of abandoning the Constitution to meet the mob’s delicate condition that it never be offended by others and that the minority must bow to the majority until the majority is ready. Our liberty doesn’t work that way.