Same Sex Unions and the Political Process
Are we now on the verge on making the same mistake with respect to same-sex unions, the Supreme Court inflicted upon us 30 years ago? The equal protection clause of the Fourteenth Amendment to the US Constitution has been twisted like a pretzel recently. During the last Supreme Court session, the Court found that selecting students dominantly by race was consistent with the Fourteenth Amendment despite its plain wording that "No state shall...deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This is a clear demonstration that there is no limit to the wreckage possible by fertile legal minds on a crusade. If the US Supreme Court stretches the equal protection clause to compel states to recognize same-sex marriage, as the Massachusetts Supreme Court did with the Massachusetts state constitution, it will have unforeseen and undesirable consequences. By unnecessarily wielding the sledge hammer of the Fourteenth Amendment, there would be no principled way to prohibit marriages of more than two or among closely related people. What are we to do if groups of three people show up in San Francisco demanding a marriage license? If we institutionalize individual sovereignty in demanding formal legal recognition for private choices, there would be no principled way to deny such recognition.
Certainly, no law prevents any two or more people from making private legal arrangements that largely mimic marital rights in financial and some legal matters. If some states wish to codify such relationships as civil unions or marriages, there is no constitutional impediment at the federal level, though we may have to deal with the issue of recognition across state lines at the Federal level.
State regulations will reflect varying judgments about justice and efficacy, but in manner consistent with the workings of a representative republic. If legislative mistakes are made, it is relatively easy to pull back and modify legislation. If we make dramatic errors in Constitutional interpretation, it may require decades to pull back or force otherwise unnecessary modifications to the Constitution. The legislative process among the different states permits experimentation before we lock in long term social changes. Perhaps we will even be able to avoid national acrimonious fights over judges into the middle of the century.
When Buckley was shouting "STOP" to inexorable change, those on the cultural Left
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