Why I favor leaving marriage equality to the political process

New York’s Court of Appeals recently refused to resolve the issue of gay marriage as a constitutional matter; instead, albeit over sharp dissent, the court’s majority threw the issue back to the legislature.

"We hold that the New York Constitution does not compel recognitionof marriages between members of the same sex. … Whether such marriages should be recognized is a question to be addressed by the Legislature," the court said.

Whether or not that was the right decision as a matter of constitutional interpretation can be debated, but as a prudential matter it was almost certainly correct. Judicial resolution of hot button cultural issues has all too often contributed to polarization and social division.

Consider the case of abortion rights. Former Democratic Congressman, Clinton Administration White House Counsel and federal judge Abner Mikva once explained that: "I support the result of Roe v. Wade. … But … in retrospect, I wish the court had stayed its hand and allowed the political process to continue, because we would have legislated the effect of Roe v. Wade in most states — not all of them, but in most states — and we wouldn’t have had to pay the political price we’ve had to pay for it being a court decision. The people who are angry at that court are angry beyond measure. As far as they are concerned the whole system is rotten because they’ve lost their opportunity to slug it out."

Justice Ruth Bader Ginsburg has likewise stated that "Roe v. Wade ... halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue."

Because it is custom, tradition, and long familiar patterns that enable people to live together peaceably, social change needs to come slowly. Change and progress are necessary, of course, but sudden change disrupts social bonds, induces stress and engenders controversy as old and vested interests are upset.

Sudden change by a cabal of unelected and largely unaccountable judges is particularly likely to engender controversy. Again, I’ll let Judge Mikva explain: "I don’t think it’s an accident that our founders put the legislative branch in the first article of the Constitution. The reason is that they perceived it to be the first among equals. Most of the people who’d been in Philadelphia had been members of the colonial legislatures, had been members of the Continental Congress, of the early congresses, and they understood the legislative process. They knew how it worked, and they recognized that there was a direct tie between where the people were and where the legislative branch was. They … were nervous about the judges because the English judges had not been an unmixed blessing as far as the colonies were concerned."

via www.professorbainbridge.com