A rebuttal…

Last week, I shared thoughts on the Supreme Court’s gay marriage decision. I received an articulate response disagreeing with me. At issue wasn’t a critique of my theology. Rather, the person questioned the process and implications of this new right becoming law.

Here’s the counterargument, in brief: The responder worried about an unelected body inscribing into the Constitution something that wasn’t there and should be decided by state legislatures, and that such non-representative government is dangerous. I hope that summary’s fair! I responded because I thought this concern was valid and important. Here’s an edited version, written- mind you- by Shane the Citizen, not Shane the Pastor:

“I appreciate your thoughtful response! It led me to re-read what I wrote. When I said that I agreed with the Court's decision, I was thinking about, "Should gay men and women have the right to marry," not, "Should the Supreme Court be arbiter of that question." In other words, to me it was a moral, even theological question about marriage. The process of federal policy-making wasn't on my mind. So I'm glad you took it that direction! As a citizen, I'm of two minds…

On the one hand, I share your concern about an unelected body making a clear shift in federal social policy. Other Supreme Court decisions aren't so fundamental. They arbitrate ambiguous legal situations, and I'm glad it exists as a non-partisan entity to do that. Look at countries without our tradition of an Independent Judiciary; corruption in the courts is too real. It's become commonplace on the right and left to assume the Supreme Court is just an extension of our divided politics. Mostly, I think that's wrong, and those justices take their unique role in our system seriously.

Nevertheless, the gay marriage question was about something deeper: who counts as fully "one of us" in American society. Essentially, that's a political question, no legal; decided by elections, not courts. Simply because "my side" won this case doesn't mean I should be naive about the precedent it sets, and think that, when the court changes, my side won't be targeted next. As you say, that's a dangerous form of government, possibly compromising the judiciary itself.

On the other hand, it's not entirely unprecedented. Before the question of "should gay folk be allowed to marry" was debated, the question of "should African-Americans be provided separate, but ostensibly equal schooling" was debated. The resolution to that question- also about who counts as fully "one of us”- was a Supreme Court decision, not legislative act. As I recall, the constitutional basis was the same as in this recent case, the 14th Amendment's "equal protection" provision.

Should that have been left to the states? I don't think so, since it was obvious that many states then wouldn’t treat their black and white citizens equally. Maybe that's a constant tension in the Federalist system; different states will take different stances on the same question. And often that's fine, but when the conflict is "who counts as fully American” (i.e. gets to vote, marry, receive citizenship), I'm in favor of federal solutions. Call me a Hamiltonian, or fan of Henry Clay...

Anyway, I do wonder whether the better course was one pursued by earlier generations. When women achieved voting rights that was by constitutional amendment. Same for African American voting rights. In other words, would a national campaign for a marriage equality amendment have been better than a Supreme Court decision? It would've taken longer. It may have also avoided the un-democratic aspect of justices making essentially political determinations.

After all, while the Constitution is our enduring, foundational document, its great genius (or one of them!) was building change into its framework- i.e. the amendment process. That way, it remains alive and accountable to future generations, not dead. If we the people don't like that it doesn't contain a federal marriage definition, well, it allows to write one in! If we don't pursue that route, perhaps we don't care as much about it as we claim? Or maybe we're worried it'll take longer than we want?

Sorry for the over-long response. You got me thinking! I don't think I've resolved anything. But I'm glad for your disagreement. It reminds me that the Founders highest hope was that citizens would be engaged not only in policy-making, but engaged with each other. All sides bringing their best to challenge and refine others' thoughts and aspirations. Too often, nowadays, people don’t engage with, but scream at each other. And constant disrespect for fellow citizens whom you disagree with is a dangerous precedent for government too.”

So there’s my rebuttal. I hope it was, at least, interesting! And please, take the responders’ cue: if you disagree with me (or anyone), engage. Stewing in silent frustration doesn’t make anyone better, amen?! There’s room at the Table for all.

Grace and Peace,
Shane