Constitutional Amendments, Moral Gridlock, and the Unique Case of Same-Sex Marriage

By Wade Maki

Change is a slow process… until it isn’t. These two “truthy” nuggets help explain American moral progress. Reflect upon the state of American moral issues such as the death penalty, abortion, physician assisted suicide, and drug use in 2011. Now compare the state of these issues today to attitudes in 1981, just three decades ago. While a few state laws and minor policy modifications have occurred, the change over 30 years is evolutionary not revolutionary. None of these issues have resulted in widespread constitutional amendments.

To further underscore the lack of major moral change, just look at other changes from 1981-2011. A brief list should include the internet, cell phones, women in positions of power, and of course an African American President. A time traveller going back to ‘81 would find none of these things and would be locked in a padded cell for predicting them.

The pace of change in technology and society contrasts strikingly with how little change occurs on moral issues, making same-sex or gay marriage truly extraordinary.  Gay marriage was not even on the radar in 1981. In 1986 the U.S. Supreme Court ruled in Bowers v. Hardwick that sodomy could be criminalized. That ruling was not overturned until 2003 (Lawrence & Gardner v. Texas).

Only in the latter 1990’s did the question of gay marriage garner serious attention and even then it was more of a political rallying cry in opposition to it, which made it an issue. To this day few major politicians have supported same-sex marriage yet a majority of states have amended their constitutions to outlaw something which wasn’t legal or even seriously considered by the political class. We have never seen other moral issues rise to the level of amending constitutions across the country in this way.

So, in less than 20 years a non-issue has become a major moral issue for America. I first included this topic in my Vice Crime and American Law course in 2006. Already, most everything I wrote about has become ancient history. From a single state with a civil union law we now see full gay marriage (GM) rights in Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and Washington D.C.

In California alone, we’ve seen chaos around the issue where the Mayor of San Francisco decided to grant GM license on his own authority only to be stopped by the courts only to be reversed statewide by other courts. Then in 2008 an anti GM referendum reinstated the ban but that referendum is now tied up in even more court proceedings.

These changes are uncharacteristically fast for a controversial moral issue in American law. Perhaps this is best explained by demographics where most issues might split near 60%-40% across all age groups (like abortion or the death penalty) gay marriage support varies widely based upon age. A large majority of those over 65 oppose gay marriage whereas the vast majority of the under 35 group support it. Given this trend the future expansion of gay marriage rights over time is to be expected.

This is why the North Carolina Legislature’s action to put on the ballot a constitutional amendment banning gay marriage this primary election is so out of touch. It bans something our law already prohibits, enshrines a form of discrimination into our constitution, and sets us up for a harsh judgment from history. Unless today’s young people or their children suddenly change their mind about gay marriage it is only a matter of time before these constitutional bans fall away just like those bans on interracial marriage or sodomy.

Many authors make a strong moral and legal case for gay marriage. Rather than replicate the good work of others I suggest we avoid the harsh judgment of history by actively opposing this amendment this coming primary election. North Carolina voters should envision those whites who stood in the way of integrated schools, or men who opposed the rise of women, or the states that held fast to interracial marriage and sodomy statutes. In each case the future was clear and those who stood in the way are not judged kindly.

Opposing this amendment is the right thing to do for reasons I’ve offered and many I haven’t. The fact that it comes up in a primary election makes your vote all the more important. Turnout is generally low and with a contested Republican presidential primary, the electorate will be older and more conservative thus more likely to vote for the amendment.

I’m proud to live in North Carolina and also proud that we are the only state in the south east not to amend our constitution to ban gay marriage. We can remain proud tomorrow by defeating this amendment today.

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3 responses to “Constitutional Amendments, Moral Gridlock, and the Unique Case of Same-Sex Marriage

  1. Brilliantly put, Wade! I’m gunning for a surprisingly high voter turnout on May 8, particularly among the liberal under-35 set that wouldn’t normally bother to show up for a Republican primary. Putting this vote on that date was a dastardly move.

    May 8, 2012. Go vote!

  2. Enjoyed the article. But then I have to ask what is morality and by whose definition do we live? Since I feel society is basically confused about almost everything these days, it would stand that society doesn’t really know what it wants which I interepret as a “fear of the unknown” or “fear of not understanding a particular concept.” But then again, I have always been a contender of “morality cannot be legislated.” Historically speaking why put a ban on things that have been happening for 1,000s of years — like sodomy the cohabitiation of same sexes? (Neither having really anything to do with the other.) Why would anyone want to ban a loving relationship? Day late and a dollar short to close that barn door now that horse is out and off the farm. Wouldn’t you say?

  3. Legislating any religious definition of morality is tricky in a secular and multicultural nation. If we legislated the morality of all the major religious groups in America, no one could do business on Friday, Saturday, or Sunday (now there’s a thought!), no one could eat pork, beef, or anything combining meat and dairy, and alcohol would have to be outlawed. A quick study of the history of Prohibition will reveal how well that last one worked.

    In the end, the best approach for legislators would be to legislate toward the common good, leaving the various religious groups room to practice their own prohibitions. As we attach so many legal privileges to the status of licensed marriage, denying that status to committed couples amounts to institutionalized bigotry, and relegates those partners to the status of second-class citizens. It goes against the central tenets of a nation that claims to put the inalienable rights of the individual first.

    That doesn’t mean that religious institutions should be forced by the state to recognize or honor those marriages if it goes against the practices of the religious tradition. However, as licensed marriage is a matter of civic law, and not religious tradition, it goes against our national sense of individual equality to apply that law in a discriminatory manner.