ILLUSTRATION: MICHELLE THOMPSON

Spring 2009 Faculty Deliberations

Let Democracy Reign

By James M. McGoldrick Jr.

I’VE BEEN THINKING A LOT ABOUT GAY MARRIAGE, an issue joining California, my home state, to my temporary home at Northeastern. Last year, California’s Supreme Court found the state constitution protected the right of gays to marry. The backlash to that decision was a quickly crafted amendment against gay marriage, which Californians passed by a slim majority. In Massachusetts, where gay marriage now flourishes, there was no such retaliatory amendment. I believe that’s because in the commonwealth there are layered and intricate legislative hurdles to amending the constitution, while amending the California Constitution is as easy as falling off a log. In fact, I believe that’s exactly what’s required.

Although I support the right of gay people to marry as a personal matter, I don’t believe state court decisions are the best means for achieving that end. First, most state constitutions are easily amended, and if the people don’t support the right of homosexuals to marry, any judicial gains are short-lived. Expectations are raised, just to be dashed, without even considering the complicated legal status of gay marriages during the interim.

Second, such state court decisions tend to mobilize forces opposed to new rights and make future political gains all the more difficult. The negative nabobs of narrowness in California organized to overturn the Supreme Court decision almost before the ink was dry. With California’s Democratically controlled legislature and nominally Republican governor, there’s reason to believe gay marriage could have been achieved through the political process within the near future. We might have said not today, but soon, and when achieved, perhaps with conviction and permanency. Third, a political victory that’s a product of the people voting to amend the constitution in a positive way to grant gays full equality would have the euphoric aroma of acceptance by a majority of Californians.

Is it reactionary to say let democracy determine the legitimacy of gay marriage as opposed to having it imposed on the majority by a state court? Perhaps, but what are the choices? State court decisions have been reversed in every state without a constitution harder to manipulate than a $2 finger puzzle. The US Supreme Court could not be more unlikely to recognize the right, and I don’t see much prospect of that changing in even eight years of an Obama administration.

The easiest solution would be for the Democratically controlled Congress to pass a law sanctioning gay marriage in all 50 states. Despite his carefully nuanced rejection of the right of gay people to marry, President Obama’s equally clear rejection of the movement in California to take away that right suggests he would sign such a bill. Finding the right enumerated power would be a roadblock, but since when was enumerated federal power much of a hurdle? It would take political will and courage to support such a law — and confirm the worst fears of Fox television — but can’t we all agree it’s the better way to go?

James M. McGoldrick Jr. is a visiting professor of law. With the last sunset of summer, he returns to Pepperdine University School of Law in Malibu, California, where he has taught constitutional law for almost 40 years.