Mark Davis

Amid all the finger-wagging warning conservatives that they are on “the wrong side of history,” we should be quick to remind that advocating liberty never offends history.

If a state wishes to engage in the radical redefinition of the central relationship in human history, it may do so. But proponents who win in one state do not have the right to dictate what happens elsewhere.

I am hopeful that the Supreme Court will leave this to the states, not because most justices share my state’s rights passion, but because they ultimately do not want to wear a Roe v. Wade-style stain, cementing the reputation of another court relying not on the law but on the nebulous concept of The Way They Think Things Ought To Be.

Even liberals, who tend to favor “marriage equality,” have a responsibility to respect the will of those who disagree.

Something does not become a constitutional right simply when people grow passionate about it. I happen to think every restaurant should be able to allow smoking if it wishes, and every New York street vendor ought to be able to sell a barrel-sized Coke.

But cities may indeed constrain those matters with standards that are the will of the voters. (Remember that the Bloomberg soda ban did not fail constitutionally, it was nuked for incoherency).

There is no doubt that gay marriage proponents have successfully identified their cause as the moral cousin of the battles to end slavery and grant women’s suffrage.

But civil rights and women’s rights address areas where gender and race differences are irrelevant or none of the public’s business. The sex of a voter or the race of a bus passenger are of no relative consequence, so equality under law is called for.

Men and women have equal status in many ways, but they are not the same type of human being. We have males and females because that dichotomy is central to the furtherance of the species. Throughout human history, men and women have interacted in ways that speak to the very different properties, characteristics and attributes they bring to the human table. Those differences are what make men and women unique, distinct and magnificent in their own ways.

The “marriage equality” movement that says it exists only to allow loving couples to do what they wish to do, brings the risk of eroding various gender differences, poisoning many other areas of law. If it is the same for me to marry a man as to marry a woman, how can we maintain any law that protects women uniquely, or restricts the draft to men, or keeps men out of ladies’ rooms? Some examples run to the potentially absurd, but I would suggest our nation’s founders find it mightily absurd that the nation they created is actually debating whether the nation should compel acceptance of a revision of one of life’s fundamental precepts.

While there are factions ready to condemn any Republican failing to sing the glories of same-sex marriage, I believe there remain plenty of voters willing to accept national candidates who say the states should decide this matter for themselves.

The Bible guides our morality. It is properly used to bolster an argument against “marriage equality” in any state considering it. There are societal and historical reasons alongside that make this a wholly different thing than opposition to interracial marriage, which was an incursion into people’s private business.

The Constitution guides our laws, which provide a legislative marketplace for those on both sides of the gay marriage issue.

Gays may marry any time anywhere and live as wedded couples for the rest of their lives in any state. The only issue is whether those unions will be viewed as the legal equal of heterosexual unions.

States wishing to take that giant step are free to legislate accordingly. Those unwilling may maintain unique recognition for opposite-sex couples. In both cases, the winners and losers have the responsibility to recognize that this is what liberty looks and feels like.

A judicial cram-down usurping voter wishes on this matter looks and feels like something wholly different. I hope Justice Kennedy and at least four of his colleagues can achieve clarity on this, fighting off the temptation to rule according to what seems kind to one side or popular in the polls.