Worth Revisiting: Robert George on “Gay Marriage, Democracy, and the Courts”

5094-SSM.constitution-thumb-200x150-5090-thumb-200x150-5091-thumb-200x150-5092.jpgWritten almost exactly a year ago, Robert George’s article on “Gay Marriage, Democracy, and the Courts” is more applicable than ever in light of recent events in California.

Click here to to read the full article in the Wall Street Journal. An excerpt: 

“…as a comprehensive sharing of life–an emotional and
biological union–marriage has value in itself and not merely as a means to
procreation…Only this understanding makes sense of all the norms–annulability
for non-consummation, the pledge of permanence, monogamy, sexual
exclusivity–that shape marriage as we know it and that our law reflects. And
only this view can explain why the state should regulate marriage (as opposed
to ordinary friendships) at all–to make it more likely that, wherever possible,
children are reared in the context of the bond between the parents whose sexual
union gave them life.”

Discrimination and the First Amendment: Christian Legal Society v Martinez

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by Shivani Radhakrishnan

Last month, the U.S. Supreme Court faced a landmark case on the issue of whether or not a public university law school, Hastings College of the Law, could deny school funding (and related benefits) to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints. The Court ruled 5-4 that a public university law school could deny these groups such funding. The majority appealed to a neutral university policy that school funding is contingent on whether a student group allowed all-comers to become members and officers.

But to see the case as upholding a neutral policy that student groups should only receive funding if they allow all-comers is too simplistic. The pith of the issue turns around whether a public university’s attempts to secure equality of access impede on a student group’s free exercise of its beliefs (beliefs that by its very nature exclude other beliefs).

It is interesting to think about what an all-comers policy would mean, if taken to its logical conclusion. What would have happened had a political group, say Students United Against the Death Penalty, required students to be anti-death penalty in order to join? If Hastings enforced the “all-comers” policy, the anti-death penalty student group could be forced to admit a majority of students that support the death penalty. In effect, this could result in the silencing of the anti-death penalty students’ expression, a serious First Amendment concern. For groups that are formed based on a shared group of beliefs, Alito astutely argued, “the consequence of an accept-all-comers policy is marginalization.”

See the full ruling here.

“Gay Marriage, Democracy, and the Courts”

Princeton Professor Robert P. George writes in the Wall Street Journal on the definition of marriage and the influence of the Court:

Following California’s Proposition 8, which restored the historic definition of marriage in that state as the union of husband and wife, a federal lawsuit has been filed to invalidate traditional marriage laws.

It would be disastrous for the justices to do so. They would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to their personal lights.

George writes that if marriage is redefined, then

…there is no reason that primarily emotional unions like friendships should be permanent, exclusive, limited to two, or legally regulated at all. Thus, there will remain no principled basis for upholding marital norms like monogamy.

But even beyond the societal impact of a redefinition of marriage, the very nature of our democratic system is at stake. By allowing the courts to decide the issue rather than the legislatures, the issue would be removed from the democratic process and would be decided instead by the personal policy preferences of a few.

Writes George,

Because marriage has already been deeply wounded, some say that redefining it will do no additional harm. I disagree. We should strengthen, not redefine, marriage. But whatever one’s view, surely it is the people, not the courts, who should debate and decide. For reasons of both principle and prudence, the issue should be settled by democratic means, not by what Justice Byron White, in his dissent in Roe, called an “act of raw judicial power.”

Read at the Wall Street Journal’s website here, or find it after the jump.

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