Same-Sex Marriage, the Constitution, and Moral Disagreement

MOJ readers are probably aware that a trial judge in the State of Washington has ruled that the State must, in accord with its own constitution, recognize same-sex marriages. The trial court's opinion tracks, in many ways, the recent same-sex-marriage decision in Massachusetts. The judge observes, among other things, that prohibiting same-sex marriage does not advance -- but in fact probably undermines -- the State's asserted (and clearly valid) interest in encouraging procreation, promoting stable families, and the "nurturance" of children.

The portion of the opinion that might be of particular interest to MOJ readers rejects the idea that "morality requires it" as a basis for prohibiting same-sex marriage:

"In our pluralistic society, in which church and state are kept scrupulously separate, the moral views of the majority can never provide the sole basis for legislation. [Citing and quoting Justice O'Connor in Lawrence]. [I]t is clear that Americans have differing views as to what morality requires in the definition of marriage. It is not for our secular government to choose between religions and take moral or religious sides in such a debate."

Whatever one thinks about the advisability or morality of same-sex marriage, or even about the legal validity of States' refusal to sanction it, this sort of reasoning is, in my view, depressing, or embarassing, or both. It strikes me as quite mistaken to claim either that (a) the First Amendment means that "the moral views of the majority can never provide the sole basis for legislation" (unless one believes that "moral views" and "religion" are identical) or (b) "secular governments" do not "take sides" in debates about matters about which "Americans have differing views."

Now, I am inclined to think that, given the Supreme Court's recent work, a result like the one reached in this case might be defensible. However, this particular opinion, in my view, is regrettably tedious, ponderous, and self-congratulatory -- but I'd welcome others' views.

I should add, by the way, that I do not understand the trial-court judge to be making anything like the quite different, and much more persuasive, argument that Michael Perry has made, namely, that religious believers sometimes ought to avoid -- for faith-based reasons -- relying on faith-based claims on matters of public policy.

Rick