In a web article last week , I reproduced my testimony before the Appropriations Committee of the Pennsylvania Senate concerning S.B. 1250, a proposed amendment to the state constitution that would limit marriage to unions of one man and one woman. I argued that sooner or later someone will file a lawsuit challenging Pennsylvania’s current marriage laws and that such a suit will require the Pennsylvania Supreme Court to decide whether the general anti-discrimination provisions in the state constitution require the state to recognize same-sex marriages. I then argued that judges have no superior insight into the moral, philosophical and political questions that the issue of same-sex marriage raises, and so it would be better to settle the question democratically by allowing the people of Pennsylvania to vote on the matter.

Responding to this argument, some critics (including Michael Perry at www.mirrorofjustice.org , for which see here and here ) have said that, if the key point concerns resolving the issue democratically rather than judicially, then I ought to support not the amendment actually proposed in S.B. 1250 (which limits marriage to unions of one man and one woman) but an amendment that would simply strip from the Pennsylvania judiciary the ability to decide the issue (e.g., “Nothing in this constitution shall be interpreted to require or prohibit the state from recognizing marriages between individuals of the same sex”). Such an amendment would prevent a judicial resolution of the issue and leave the matter in the normal legislative process.

There is some truth in this argument, and I would happily support such an amendment. Political realities in Pennsylvania are such, however, that if the legislature approves any amendment to the Pennsylvania constitution, it’s very likely to be in the form of the amendment actually proposed in S.B. 1250. Hence, for practical purposes, it’s S.B. 1250 or nothing. If there is to be a political debate in Pennsylvania about same-sex marriage, therefore, the Pennsylvania legislature has to bring S.B. 1250 before the voters.

This raises, however, another important point, which is that people on different sides of the same-sex marriage debate will tend to think differently about the relative merits of a democratic versus judicial resolution of the issue. In short, opponents of same-sex marriage have a special interest in a democratic resolution whereas proponents of same-sex marriage have a special interest in a judicial resolution.

For, if the state supreme court takes a same-sex marriage case, there are roughly two possible outcomes: either, the court decides that the state constitution requires same-sex marriage (as in the recent California decision), or else the court decides that the state constitution does not require same-sex marriage (as happened in New York). In the former case, the proponents of same-sex marriage win outright and opponents of same-sex marriage lose outright. In the latter, the issue remains in the normal political process, and both sides can continue to advocate for their views in the state legislature (even though the opponents of same-sex marriage will be somewhat helped, and the proponents of same-sex marriage somewhat harmed, because the non-discrimination argument made by the latter will have been authoritatively rejected in the courts).

From the point of view of opponents of same-sex marriage, therefore, allowing the judiciary a crack at the same-sex marriage issue has great down-side risk and little upside potential. From the point of view of proponents of same-sex marriage, however, the situation is exactly reversed: allowing the judiciary a crack at the issue has great upside potential and only limited downside risk. For this reason, opponents of same-sex marriage are likely to favor, and proponents of same-sex marriage are likely to oppose, even a constitutional amendment that merely strips the judiciary of authority to settle the issue.

Given these facts, if (as I think right) constitutional principle requires a democratic resolution of the same-sex marriage issue, the burden of generating a democratic debate on the issue by bringing a constitutional amendment before the people will tend to fall largely on the opponents of same-sex marriage. Even if democratic principles we all tend to agree on favor a democratic rather than a judicial resolution of the issue, it is unreasonable to expect proponents of same-sex marriage to assist in bringing before the people an amendment that is adverse to their immediate interests. But, if proponents of same-sex marriage cannot reasonably be expected to assist in generating a democratic debate about the issue (and may even work against bringing the matter in whatever form before the people), then by the same token opponents of same-sex marriage cannot reasonably be expected to bear the burden of generating the needed debate without framing the amendment in a way that, if enacted, settles the issue in a way favorable to them. In other words, if we cannot reasonably expect proponents of same-sex marriage to assist in generating a political debate largely contrary to their immediate interests, we similarly cannot reasonably expect opponents of same-sex marriage to generate the political debate otherwise than on terms largely favorable to their immediate interests.

It follows that, as a matter of constitutional principle and given political realities and what we can reasonably expect from people in the public square, bringing S.B. 1250 before the people is probably the best available solution of the same-sex marriage issue in Pennsylvania.

Articles by Robert T. Miller

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