A reader writes:
The reader who argued against your take on judicial activism vs. persuasion of the public is wrong on a crucial point, I think. Yes, leaving fundamental human rights open to amendment or revocation by elections is of course a dangerous policy. But anti-gay-marriage conservatives are right on a very important point – marriage is a social institution, not a universal human right. Of course all secular arguments made against gay marriage are strongly undermined by the findings of sociology, but nonetheless they are valid arguments. If legal gay marriage would indeed have chaotic and threatening consequences to society, a ban might be justified.
As somewhat of a newcomer to American politics and culture (I’m an immigrant), I think that the reason for the popularity of the human rights argument lies in the modern gay rights movement being a bit caught up in its past. Making homosexuality more accepted was and continued to be the aim, but opposing sodomy laws or measures to fire gay teachers does not fall into the same category as advocating the legalization of gay marriage.
I realize that this position can be criticized quite easily by invoking the judicial activism that struck down miscegenation laws. But if human rights are values that should generally be upheld with little regard to consequences, I can’t see how gay marriage is a human right. The reason for this is also what makes conservatives different from libertarians – the idea that individualism must often be balanced by utilitarian concerns for society.
And that’s why I am keen to win this politically rather than through the courts. The courts do have a role – and without them, the gay minority would have had no standing on this question. And the critical fact in American law is that civil marriage is already regarded as a very basic constitutional right – more basic than the right to vote. But the legal and constitutional arguments provide, I believe, an opportunity for the broader and deeper case: that this is a reform that benefits all of us. And that’s why I’d rather win this in the next initiative than have it enforced by the state Supreme Court.