The marriage equality debate is a bramble bush of conflicting ideas and thoughts. Sure, there are the extremes of the debate: the homophobic resentment on the one end, and the bellyfeel of juveniles on the other.
But despite those distractions, the bramble bush has managed to keep a lot of the more interesting ideas in play. What is the role of marriage in society? Is it something worth preserving? Does the role of marriage in society open up the opportunity for religious influence in ‘secular’ society? What about gender and marriage? Does marriage preserve a tradition of oppressing women? And so on and so forth.
As a conservative, I think marriage is important but I think it’s a means to an end. People in happy marriages is the symptom of a healthy society; you don’t force people into ‘happy’ marriages in order to create a healthy society. This puts me at odds with a number of other conservatives who want to protect marriage first and then hope it results in a good society.
So, just to set the background, I am in favour of marriage equality.
That said, I do not hope that the Supreme Court action succeeds in effecting marriage equality. A few of my friends have expressed the view that this should be a contradictory position, so I thought I’d sketch it out quickly.
The organ for social change in democratic countries is the parliament. We elect to parliament people who hold our values and who represent those values in creating laws and (in Australia, at least) executing the will of parliament. If we want social change, we elect people who will represent that desire for social change.
Courts are not representatives of the people. As such, courts should not be the organ of state which causes changes to social values.
While this is often bemoaned by conservatives as ‘judicial activism’, I’m not nearly so shrill. Being sane, I think that courts do have an important role in being a source of law. Where I’m agreeing with the shrill folk is that I don’t think courts should have a place in being a source of social change. The view is called ‘parliamentary sovereignty’ and it is essential for rational democratic states.
If the activists were to win the court case, it would be a breach of this view that parliament is the place where social change should be managed.
We can consider an alternative case. Imagine that parliament passed a law that legalised marriage equality and a group of evangelical churches became sufficiently distressed as to mount a legal case against the new law. Although there’s nothing strictly agreeing with the churches that marriage equality is (somehow) unconstitutional, the courts find some unusual interpretation of the constitution (perhaps through an implied right) to satisfy their personal views that marriage equality is icky. We would be outraged. We would be right to be outraged.
So if we can understand that we would be outraged in the latter instance, we should also be outraged in the instance before us as it is functionally identical (just with the opposite social value being protected). But the activists aren’t. For them, it’s social change at all costs and that is deeply worrying.