This op-ed was written as part of a two-sided debate series. The opposing argument can be found here.
Though I have no strong opinion on same-sex marriage, I do have a strong opinion on how it ought to be legalized: by the states, by the American people and by democratic methods — not by federal courts.
Whether or not you support the legalization of same-sex marriage, it is among the most important issues of our time. The family is the bedrock of society, and whenever we decide to tamper with cultural issues, for better or worse, such a decision concerns everyone. If ever there were an issue appropriate for democracy, it is same-sex marriage.
The legally codified structure of society must be determined by the individual members of that society, not by the majority of nine unelected, demographically unrepresentative officials serving life terms with no accountability to constituents. We have an independent judiciary for a reason: that they should not be political.
Think about the result this way: Obergefell v. Hodges, the landmark 2015 Supreme Court case that decided the issue, did not by virtue codify same-sex marriage, but instead by tyranny removed the decision-making power of individual states, and of citizens therein, to shape society for themselves.
The institution of same-sex marriage is more fit to be debated in the public square and decided by the people than nearly any other issue imaginable. Marriage is in fact an ancient institution, upon the back of which, we have organized our societies for three millenia. Messing with the social structure has real consequences; while these things can be either good or bad, they are certainly important. While precedent is not sufficient to defend same-sex marriage’s prohibition, its status quo as the scaffolding of civilization for 150 generations is, standing alone, a compelling enough argument to me that its importance is magnificent and that the choice of whether to legalize same-sex marriage should be decided by every single citizen of the country, from Birmingham to Portland.
Serious advocacy for same-sex marriage didn’t pick up until well into the 20th century, and only gained majority support in the United States in 2011. In 1968, it had only fringe support; among liberals at Emory now, its virtue is so vacuously obvious that I will likely be called a bigot — not even for expressing an antagonistic opinion towards the subject — but for expressing my distaste for how it was codified. For all of history up until half a century ago, few would find the issue even worth debating — the first major LBGT event in our collective consciousness is the Stonewall Inn Riot of 1969. Is it really unreasonable, then, to ask that we let individuals decide on this massive social change with their ballots?
For a long time, for example, there were legitimate sociological questions regarding the outcomes for children raised in same-sex versus traditional families. As it turns out, the consensus (not universal, but clear) among sociologists seems to be that there is little difference, though there is still a minority who doubt these findings. Nevertheless, it should be the people who decide the significance of such concerns.
The people of this country, not nine out-of-touch judges, ought to be the ones deciding whether those hypothetical sociological concerns, real or imaginary, should outweigh the value of the freedom to marry.
Democracy is often its own end.
To be sure, the nation has come around to one side anyway, with about two-thirds agreeing that same-sex marriage ought to be legal, and only Alabama having a majority (of 51 percent) who think it should be illegal. It’s only inevitable that this would have led to same-sex marriage’s legalization state-by-state in due time.
As the late Antonin Scalia wrote in his dissenting opinion in Obergefell vs. Hodges, “to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
To argue that the legalization of same-sex marriage be brought about in this way is tantamount to arguing that instead of trusting people to come to a clear majority opinion over time (which they already have in virtually every state), we ought to trust in five mostly-white lawyers from two law schools, from but a handful of states and of only two creeds (Catholic and Jewish). In effect, these are your social dictators; the majority opinion of this small group of nine, not that of the public, is the one that determines what the institution of marriage ought to entail; these, not your elected representatives, are the ones who are deciding what marriage is.
For the staunch advocate of same-sex marriage, it may seem irrelevant whether it be legalized at the ballot box or at the high courts. But it is of great consequence, no matter your political persuasion. If there should be one right that is preserved at all costs, it is the right to cast your vote however you choose, to shape your society thereby and to be the agent who is creating a more perfect union. It’s easy not to care about the democratic process when your side is winning — you can call it progress and celebrate its consequences. But such a celebration lasts only as long as your side is winning; when your side is losing, it becomes tyranny.
Grant Osborn (19C) is from Springfield, Ohio.
