Homosexual right to marry? Not in our democracy

Posted: Feb 24, 2004 12:00 AM

Ever since the Massachusetts State Supreme Court's Nov. 19 decision to legalize same-sex unions, the nightly news has been saturated with images of gay couples rushing to the altar. This sickens me.

I am not alone. A recent Zogby poll indicated that 70 percent of Massachusetts's citizens do not favor the decision allowing homosexual couples to marry. And it's not just Massachusetts. Recent polls by "The New York Times" and CBS News and one by "USA Today" and CNN, all found that more than 60 percent of Americans oppose the legalization of homosexual unions.

Not surprisingly, respondents were uncomfortable with the Supreme Court redefining one of the fundamental building blocks of our culture - marriage. And rightly so. Appointed judges effectively short-circuit the democratic process when they assert their will on the culture. That's plainly the case here, as the judiciary used grand ideological sweeps to invent a new constitutional right.

This, the U.S. Constitution has never allowed. Thankfully, there remains room for the democratic process to play out. According to the Zogby poll, 69 percent of Massachusetts's voters favor an amendment to keep Massachusetts a traditional marriage state.

The Massachusetts Supreme Court decision can be viewed as an extension of recent case law that carves out constitutionally protected space for homosexuals. During their last term, the U.S. Supreme Court used vague concepts of personal autonomy to invent a fundamental right to engage in sodomy (Lawrence v. Texas). The justices grounded their decision in the "due process clause" of the 14th Amendment, which declares that states may not "deprive any person of life, liberty or property, without due process of law." Precedent dictates that the due process clause protects only those liberties that are "deeply rooted in this nation's history and tradition." Though no one would say that the right to engage in sodomy is deeply rooted in the American tradition, Justice Kennedy did argue that Americans have traditionally been free to engage in intimate relations in their own bedroom free of government regulation. In his majority decision, he extended that same liberty interest and privacy right to homosexuals.

Just one thing - there is also a long tradition in this country of using moral codes to prohibit conduct deemed immoral by the majority of the citizens, as evidenced by restrictions against prostitution, bestiality, pedophilia, etc. As Justice Scalia tersely noted in his dissent, Texas's anti-sodomy laws is "well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new 'constitutional right' by a court that is impatient of democratic change." In other words, the matter of homosexual rights should not simply be dictated by the whims of appointed judges.

The judiciary should always be sensitive to leaving room for democratic debate on issues that are bound up in complex notions of morality, religious belief and personal autonomy. This is when the court is at its best - when its decisions spill out of the courtroom and stimulate earnest and important debate and legislative decision making. This is the democratic process. And it is ripped to shreds when the judiciary uses fiat to impose their own views about what our law should be, as the Massachusetts Supreme Court did when they legalized homosexual unions.