Consider the reaction of Jo-Ann Shain, one of the plaintiffs in Hernandez v. Robles, to the New York trial court's ruling that the state's constitution prohibits restricting marriage to opposite sex couples:
I was even more moved than I thought I’d be when I heard about this ruling. All of us cried – me, Mary Jo and our 15-year-old daughter. For the first time, our family is being treated with the respect and dignity that our friends, coworkers and neighbors automatically have.It's hard not to be moved by Shain's words. At the same time, however, the court's reasoning in Hernandez leaves much to be desired. John Balk finds particularly puzzling the court's due process argument that the right to marry includes an unqualified right to choose whom to marry:
If Balk--a supporter of gay marriage--can spot this issue, we can be certain the religious right will as well. It's only a matter of time before they exploit it as yet more evidence for why the Constitution should be amended to prohibit gay marriage. Already Mathew Staver, president of the "pro-family" legal group Liberty Counsel, has said to the Baptist Press of the decision:
But the problem is that this would undermine state laws regarding incest and polygamy as well, and the court makes no attempt to distinguish those cases from the case of same-sex marriage. Indeed, at one point in the opinion (p. 45), the court uses the example of polygamy to show that marriage has meant different things at different times and in different places.
To preserve marriage we have to win 100 percent of the time. To destroy the institution, we only need one loss. And that's another reason why we need constitutional amendments on the state and federal level.Hernandez will be appealed, and it's anyone's guess what the New York Court of Appeals (the state's high court) will do. But even if the decision is affirmed, gays and lesbians must carefully scrutinize claims that cases like these represent "victories." It's simply too early in the story of gay rights to know whether they really are. To put the matter in terms of the black civil rights movement, this could be the 1960s--or it could be the 1860s. We just don't have enough information to know for sure which it is.
Then, too, there is the basic counter-majoritarian difficulty posed by judicial activism. Balk explains the problem this way:
I strongly support same sex marriage, but my decided preference is for legislatures to adopt reform of the marriage laws rather than have courts impose the reform. If courts are going to get involved, I greatly prefer the approach of the Vermont Supreme Court in Baker v. State-- hold that the current law is unconstitutional, explain the rough contours of the constitutional principles that a statute would have to satisfy, and send the issue to the legislature to come up with a solution.
That is not the same thing as having the legislature take the issue up on its own, but it does have the advantage of giving the result some degree of democratic ratification.