I see that the New York legislature has passed, and Governor Andrew Cuomo has signed, a bill legalizing same-sex marriage. This follows what the Illinois legislature did earlier this year in approving civil unions. Which brings me to my point.
It appears that same-sex marriage and civil unions are coming. Public opinion is shifting. And it is shifting the most among the young, which means it will continue to shift as time passes. In light of this, and regardless of how one feels about same-sex marriage and civil unions, we would all be better off if they come from the legislatures, instead of the courts. Let me explain.
According to the Chicago Tribune, in New York:
“[C]onservative lawmakers fought for changes to enhance protection for faith-based groups opposed to recognizing gay marriages.
Late Friday afternoon, lawmakers agreed on an amendment that the bill's sponsor, Assembly member Daniel O'Donnell, said made ‘clearer than clear’ that religious groups would not be required to perform same-sex marriages.”
This is the kind of fine-tuning and adjusting that legislatures can do and courts cannot. And these kinds of modifications and compromises can make these kinds of changes more acceptable to the majority of people who are in the middle on issues such as this.
I have often thought that it was a good thing the Equal Rights Amendment did not pass. The fact it didn’t pass did not stop much of what the proponents wanted (and what the opponents opposed) from happening. But it happened in bits and pieces, in laws and in people’s attitudes, over time, instead of in courts and lawsuits. And it has allowed the questions to be decided by those in the middle instead of those on the extreme.
I have similarly thought that one of the tragedies of the abortion debate in the United States is that the Supreme Court tried to answer the question with a blanket rule that applied to everybody, in all situations. The result has been constant litigation and politicization of the courts.
I have wondered where we would be without Roe v. Wade. It seems possible that, instead of the debate being controlled by those on the extremes, i.e., by those who favor no abortion in almost any situation and those who would allow partial birth abortion, we would have the people in the middle making the decisions. Abortion would be legal, but there would be limits. Abortions at 25½ weeks wouldn’t be allowed, and parents would be involved in the case of minors. Our legislators would be forced to deal with the issue, instead of posturing, and they would, eventually, come up with rules that most of us could agree to and live with.
I realize that same-sex couples want it all now. I probably would, too. But they would be better off, and the rest of us would, too, if they would press for their changes in the legislatures instead of in the courts.
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