Jim Manzi writes, in part, with kudos from the libertarian wing (of which I am sometimes a part):
If subsidiarity is a working compromise designed to accommodate differing moral views, I think that it is a positive good in addressing the second type of objection: that gay marriage will ultimately lead to undesirable social outcomes. I am skeptical that gay marriage is part of a process of social breakdown, but lots of people disagree with me. We have differing theories. I accept that I might be wrong, or at minimum wrong for some times or places. It seems to me that the best way to answer this question is not to yell at each other, or even to see who can write the most elegant and persuasive books, but to let different groups of people voluntarily try different approaches and see what actually happens.Americans have a healthy aversion to telling other people how to live. Only about 30 percent of Americans support a constitutional amendment banning gay marriage. Why don’t we try letting people live how they want to live, and let others try to impose uniform national rules on a heterogeneous population of 300 million people?
This is all well and good, except it completely ignores the manner in which we make these decisions in our society. And I would think this would be of some significant concern to those who care about liberty. if, as Jim writes, only 30 percent of Americans support a constitutional amendment banning gay marriage, that is all well and good. But 61 percent of those who voted on the subject in California in 2000 favored traditional marriage as the law in California, and it was their vote that was overturned by the 4-3 decision of the California Supreme Court. I assume Jim cited the 30 percent figure for some reason, and I assume that reason was to persuade us that the majority position should either win out, or that it will, as a practical matter, win out. But it didn’t win out in California. Moreover, to say “let different groups of people voluntarily try different approaches and see what actually happens” is all well and good, but it’s not on point. The voters in California did not seek to outlaw homosexual behavior or same-sex unions, for that matter. They prohibited their state from giving its official imprimatur, by way of marriage, to the behavior.
Jim also asks, “Why don’t we try letting people live how they want to live, and let others try to impose uniform national rules on a heterogeneous population of 300 million people?” Whose stopping them from living as they wish? The assault on ordered liberty here is coming from the state bench, not the public. And what of our constitutional system (federal and state)? Should we abandon that too? Should 4-3 decisions in California and Massachusetts, which do not adhere to the law in these states, be celebrated? Should these state courts be able to export their decisions to other states, which is, in fact the tactic of the litigants? What exactly is the standard by which we should be governed if we abandon Constitutional constructs? The manner in which these decisions are made is vital to the republic.
Moreover, if, as Jim suggests in his statistical exposition, that gay marriage is inevitable (I disagree, but don’t want to divert from my point), then its inevitability will play out over time because of society’s changing standards. And if it is inevitable, why the necessity of imposing it on a society, in this case California, by judicial fiat?