Thursday’s decision by a federal court to overturn Nebraska’s state constitutional marriage amendment is a landmark moment in the battle over same-sex marriage. For the first time, a federal court has taken this matter out of the hands of a state. A constitutional amendment passed with a 70 percent majority of Nebraska’s voters has been voided. There could be no clearer demonstration of the arrogance of activist judges. This should remind Republican senators of the urgent need to confirm the president’s nominees to the bench. And of course this decision clearly shows that, without a federal marriage amendment, same-sex marriage is destined to be imposed on the country by the courts.
Eugene Volokh has posted a very sharp analysis of the Nebraska case. Let’s use Volokh’s thorough analysis as a way into this issue. The most important point Volokh makes is that the logic of the Nebraska decision, if upheld, would have the effect of imposing gay marriage on the entire country. As noted, this is exactly why a federal marriage amendment is needed. Yet Volokh himself is a libertarian-leaning law professor sympathetic to same-sex marriage and opposed to a federal marriage amendment. Volokh seems to think that this obviously wrongheaded decision is destined to be reversed on appeal. So why bother with a federal amendment if this fluke of a decision is about to be overturned?
Well, this decision is not a fluke. The parts of the decision Volokh thinks are the most obviously wrongheaded simply mimic the core arguments of same-sex-marriage advocates. Volokh criticizes the decision for holding that the state has no rational interest in promoting unions among specifically heterosexual couples. Volokh doesn’t personally endorse the idea that the state ought to claim such an interest, but he insists that reasonable people can differ on the matter. Says Volokh, it’s not irrational on its face that the state might have a special interest in promoting a particular sort of relationship between men and women. Yet the distinctive thing about public debate on this issue is the claim by same-sex-marriage advocates that there are no rational grounds for opposing gay marriage–that opposition to same-sex marriage is rooted in sheer animus. The court here is simply buying into the widespread view that this is not a rational debate, but a debate between rationality and prejudice. The Goodridge decision in Massachusetts did something similar.
Volokh also criticizes the case for ignoring the distinction between the right to intimate association and the right to have the government recognize or subsidize your particular form of relationship. After all, says Volokh, the government doesn’t have to provide the benefits of marriage to single people. Volokh is right on substance, but misses the point nonetheless. A core premise of same-sex-marriage advocates is that a lack of government benefits does in fact violate their rights. The mere right to association is not enough, they say. They want benefits and state recognition for their relationships–and they insist that their entitlement to that recognition is a “right.” Even now, “single’s rights” advocates are making exactly the same argument for their own entitlement to the benefits of marriage. In fact, single’s rights groups self-consciously model their own demands on the demands of the gay marriage movement.
So I agree with Volokh that this decision is wrongheaded. It blurs key distinctions, refuses to recognize that there is a rational argument on both sides of the issue, and ultimately undercuts the rationale for state support of marriage. Yet that is exactly what the movement for same-sex marriage has been doing for years.
Volokh is “pretty sure” the Court of Appeals will reverse this decision. If it doesn’t, says Volokh, the Supreme Court will–and should–reverse. This strikes me as utterly naive. Volokh seems to think the judicial overreach in this case is obvious. But that doesn’t explain how the case got wrongly decided to begin with. The answer is clear. This judge has accepted the framing of the issue adopted by both same-sex-marriage advocates–and the entire mainstream media. This isn’t some judicial fluke. It’s evidence that the movement for same-sex marriage is successfully framing the debate–and thereby undermining the legal basis for marriage itself.
If this particular decision is reversed on appeal, that’s cold comfort. It’s all-too-obvious that the folks who think the way this judge does are not going to give way after a single reversal. They rightly believe that, over time, the courts have been shifting in their direction. It’s not just some crazy off-the-reservation judge who’s flying in the face of Volokh’s favored legal principles. It’s the entire liberal establishment. That is why, for those who oppose same-sex marriage, there is simply no alternative to a federal constitutional amendment.