Gay marriage is currently before the California State Supreme Court as a constitutional issue. News coverage of the case has made me think that there might be three ways of addressing the issue:<\/p>\n
1. Allow state legislatures (or voters in referenda) to deny to gay couples all the traditional rights of marriage. I believe that policy is discriminatory and counter to the Fourteenth Amendment’s guarantee of “equal protection.” I would like to see courts intervene against this policy even if they must defy popular opinion.<\/p>\n
2. Require states to offer marriage licenses–by that name–to gay and straight couples. That would be full equality. But it would be deeply unpopular, and it would block public participation and deliberation about an important issue. It would substitute the expert judgment of a few judges for the political process.<\/p>\n
3. Require states to offer all the traditional benefits of marriage to gay and straight couples, but allow states to reserve the word “marriage” for heterosexuals. That is not completely and absolutely “equal” treatment. But this third policy has the great advantage of offering a possible compromise. Besides, I’m not keen on courts’ dictating what governments must say<\/i> (as opposed to what they may do<\/i>).<\/p>\n
For one thing, we should avoid abridging the collective speech rights of the people or their legislatures. In my view, not only individual people, but also “the people,” should be able to say what they want (even if it’s wrong). The remedy to bad public speech is to rebut or criticize the majority’s view, not to ask a court to strike it down. One can also simply ignore what the government says by, for example, calling gay people “married” even if the state won’t.<\/p>\n
Further, I think we should be careful about striking down state language or expression that treats citizens differently, even when the differences are invidious. That opens the door to all kinds of litigation about governmental expression. Do we want courts to decide the content of textbooks in public schools, the meaning of public statues and monuments, or statements made on the job by teachers and police officers? The state can do wrong by speaking offensively, but lawsuits are not the best remedy.<\/p>\n","protected":false},"excerpt":{"rendered":"
Gay marriage is currently before the California State Supreme Court as a constitutional issue. News coverage of the case has made me think that there might be three ways of addressing the issue: 1. Allow state legislatures (or voters in referenda) to deny to gay couples all the traditional rights of marriage. I believe that […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-5395","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"acf":[],"_links":{"self":[{"href":"https:\/\/peterlevine.ws\/index.php?rest_route=\/wp\/v2\/posts\/5395","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/peterlevine.ws\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/peterlevine.ws\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/peterlevine.ws\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/peterlevine.ws\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=5395"}],"version-history":[{"count":0,"href":"https:\/\/peterlevine.ws\/index.php?rest_route=\/wp\/v2\/posts\/5395\/revisions"}],"wp:attachment":[{"href":"https:\/\/peterlevine.ws\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=5395"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/peterlevine.ws\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=5395"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/peterlevine.ws\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=5395"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}