EPSTEIN ON THE ANTI-MARRIAGE AMENDMENT
In his inimitable style (well, one of the Volokhs can probably imitate him), Richard Epstein lays out the case against amending the Constitution to prohibit same-sex marriage. As always, he starts from the basics: "All majoritarians recognize some limitations on government. All libertarians recognize that there are some inherently political decisions that no personal rights can trump. But how to draw the balance?"
The WSJ link above should work for a few more days, but here's a further excerpt:
When President Bush, for example, talks about the need to "protect" the sanctity of marriage, his plea is a giant non sequitur because he does not explain what, precisely, he is protecting marriage against. No proponent of gay marriage wants to ban traditional marriage, or to burden couples who want to marry with endless tests, taxes and delays. All gay-marriage advocates want to do is to enjoy the same rights of association that are held by other people. Let the state argue that gay marriages are a health risk, and the answer is that anything that encourages monogamy has the opposite effect. Any principled burden of justification for the ban is not met.
But it is said that marriage is different because it is more than a private association; it is an institution licensed by the state. To which the answer is that any use of state monopoly power must avoid suspect grounds for discrimination. So the state must explain why it will favor some unions over others -- without resort to claims of public morals. The restraints on state power are the same as when the state uses its monopoly power to license drivers, or grant zoning permits.
The question here is not just whether the courts will impose their views on the people of the several states. It is whether they will allow a majority of the public to impose its will on a minority within its midst in the absence of any need for a collective decision. The claim for same-sex marriage is no weaker than any other claim of individual rights on personal and religious matters.
But since the state bans polygamy, some ask, why not also ban same sex marriages? Turn the question around, however: Why ban the former, especially by constitutional amendment, when agreed to by all parties? Incest is a different matter, with the high dangers from inbreeding. And people and poodles can't tie the knot because one half in the relationship (some would say the better half) lacks the capacity to enter into a contract.
The case against state prohibition of same-sex marriages becomes clearer when we ask how much further we are prepared to take the principle of democratic domination. Where is the limiting principle on majority power? Suppose that the proponents of gay rights get strong enough politically to require traditional churches to perform gay marriages, or to admit gay individuals into their clergy. Or to demand that people accept gay couples as tenants in their homes, even if they regard their relationship as sinful. Now the shoe is on the other foot. I think that the paramount claims of individual liberty should not have to yield to democratic decisions intended to impose an alternative enlightened view of public morals.