GAY MARRIAGE (3)

One of the criticisms of the common law tradition is that unelected judges sometimes end up making laws. That is unfair, in my view. Because laws are written in words, and because words can be unclear, someone has to decide exactly what those words mean at times. That is what has just happened in the U.S. Supreme Court's decision that gay marriage is protected by the constitution. Or, to make it more legally precise, bans on gay marriage are unconstitutional.

Gay marriage is not mentioned in the U.S. constitution, and it's pretty certain that the Founding Fathers did not discuss it. Indeed, as Chief Justice Roberts noted in oral arguments, up until relatively recently, virtually nobody considered the word "marriage" to mean anything other than a union between a man and a woman. However, the constitution does state two things pretty clearly. First, that everyone is entitled to "equal protection" under the law; and secondly, that states within the U.S. federal system are obliged to respect the decisions of other states (eg if someone is convicted of a crime in Vermont, then California should recognise them as a criminal as well). Given that 36 states and the District of Columbia already recognise gay marriage, the combination of these two principles led the Supreme Court to rule that bans on it were unconstitutional. Nevertheless, is is a sign of the reluctance of judges to "make law" that the decision had the narrowest possible 5-4 majority.

Despite that, I predict that the furore about gay marriage will die quite quickly. It helps that, as I pointed out earlier, allowing gay marriage does not do any harm to anyone ordinarily married. It also helps that Americans' acceptance of gay marriage has changed so rapidly in recent years. Neither of these factors apply to (say) abortion, which remains hugely contentious in the United States, even though the Supreme Court ruled it constitutional as long ago as 1973. That decision did not just require application of the equal protection provisions, but the finding of a principle of "privacy" within the constitution that many judicial commentators do not believe exists.

The Supreme Court's ruling applies only to civil marriages, and has nothing to do with marriage in church. That presumably will remain as it is today, with churches free to limit marriage as they see fit. Against that background, marriage in the U.S. has in many ways reverted to the way it used to be a long time ago. Before the Hildebrand revolution in the papacy in the mid 11th century, people essentially married themselves; a verbal commitment witnessed by two others was enough. True, many marriages took place at the church door; but that was so they could be blessed by the priest afterwards, not because the priest was needed in the first place. The church spied an opportunity to become involved in the most intimate part of people's lives, and exploited it to the full, to the extent that many of the people most opposed to gay marriage today are religious conservatives. When those people rant against the extra-judicial powers supposedly assumed by the Supreme Court, they should be a bit more willing to remember their ecclesiastical history and the extra-doctrinal powers definitely assumed by the church.    

Walter Blotscher