The Contradiction In The Gay Marriage Ruling

I always try to talk about the gay marriage issue in a way that does not offend my gay friends. So, here we go:

The ruling comes down to a couple of clear issues for me. First, do you believe the Constitution is a "living document"--meant to be redefined by each generation? Ramesh Ponnuru takes the "strict intent" view:

In a democratic system such as ours, it can be perfectly appropriate for courts to set aside laws. Constitutions reflect the permanent will of the people, which trumps the temporary will of the people as expressed in ordinary statutes (if a court is forced to choose between these sources of law to decide a case).

But nobody can plausibly claim that Iowans meant to ratify same-sex marriage when they approved a constitution including equal-protection language. Nor can anyone plausibly claim that Iowans meant to authorize judges to decide such matters as marriage policy when they approved that language.

The court's ruling thus has no democratic or constitutional legitimacy. Whether or not same-sex marriage is a good idea, the decision by Iowa's court to impose it on the state is an outrage.

But the court rules thus:

1) “[E]qual protection can only be defined by the standards of each generation.” (p. 16)

Here's Ed Whelen says the court contradicts itself. The latest "standard" set by this generation was in 1998 when the legislature, reflecting the majority will of its generation, passed the law defining marriage as between a man and a woman.

Instead, the court seemingly admits that it's establishing a standard that might not be popular with this generation:

(2) “The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.” (pp. 16).

I also object to the fact that the court believes that the objection to same sex marriage is mainly a religious objection.

The court suggests that "religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage" but religion is not a proper basis for legal distinctions.

In fact, this is an issue of the role that a father and a mother play in the lives of a child--and whether those roles are, in the end, immaterial.

At the same time, I know gay couples who have made a life-long commitment to each other and wish to express that commitment through the institution of marriage. I just wish for that debate to take place in the public arena.