Opinion and Taking Issue

RUSTHOVEN: Let lawmakers decide gay marriage

April 13, 2013

RusthovenIndiana’s new senator, Joe Donnelly, made news April 5 announcing he had changed his mind and now supported gay marriage. A few days earlier, the Supreme Court heard arguments in constitutional challenges to the federal Defense of Marriage Act and actions by some states prohibiting gay marriage.

Hoosiers and other Americans are now about equally divided on gay marriage, with strong views either way. What we decide is important. Just as important is who does the deciding.

Recent decades have witnessed a sea change in public thinking about homosexuality, with the very term “homosexual” largely supplanted by “gay” and “lesbian.” A quarter century ago, the only persons talking about gay marriage were those opposed to making sexual orientation a civil rights category, warning this would lead to gay marriage. At the time, this was fervently condemned as hyperbolic, fear-mongering alarmism. The folks doing the condemning now claim, with equal fervor, that gay marriage is a constitutional right.

It is not. Neither is what we used to call just “marriage” and now call “traditional marriage.” Our Constitution does not address such matters. Sanctioning and regulating the consequences of entering into (and dissolving) marital relationships have always been the province of the states.

Further—with very few, very recent exceptions—these are the province of state legislatures, not courts.

So it should remain. One reason is that legislators make such decisions as elected representatives of citizens who can always choose new ones.

A more fundamental reason is that there is no principled way for judges to make such choices based on “equal protection” or other constitutional formulations. Attempts to do so, no matter how “judicial sounding” the rhetoric, are exercises in the logical fallacy of “begging the question,” assuming from the outset what the rhetoric purports to “prove.”

Yes, one can easily say the law should not “discriminate” between traditional and gay marriage. But one can say just as easily—and just as logically—that the law should not discriminate between traditional and polygamous marriage. Indeed, polygamy proponents can point to more history on their side (biblical and otherwise, including parts of 19th century America) than is available to gay marriage supporters.

The point is not that gay marriage is “no better” than polygamy, which is not my view. The point instead is that, from a logical standpoint—which is how judges make decisions—both statements above are equally meaningless.

Each is “true” only if one starts from the proposition that gay marriage or polygamy is a good (or at least permissible) relationship the law should sanction for adults as a matter of their choices and “rights,” just as it does with traditional marriage.

There are answers to questions about whether gay marriage, or polygamy, or any other form of intimate relationship between (or among) consenting adults should be legal. But the answers are not reached via logic or the locution of constitutional analysis.

They are found in our collective sense, informed by the best judgments we can make from what we know of human nature and civilizations, about what types of relationships best foster and promote the civilization and values we wish to promote and preserve for ourselves and succeeding generations.

In our system, we express our collective sense on such issues through elected representatives who answer to those they serve. Views on gay marriage are changing. Let’s effect any change we may collectively decide to make not by judicial diktat, but in a manner consistent with the system on which our freedoms ultimately depend.•

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Rusthoven, an Indianapolis attorney and graduate of Harvard College and Harvard Law School, was associate counsel to President Reagan. Send comments on this column to ibjedit@ibj.com.

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