Roger Pilon, the vice president of legal affairs for the Cato Institute, has a column at the Huffington Post responding to an editorial in the Wall Street Journal urging the Supreme Court to reject marriage equality. The WSJ argued that if the Supreme Court mandates marriage equality, it would have the same discordant result as Roe v Wade and create the same cultural turmoil:
The Supreme Court does not have a good record legislating cultural change. A ruling on behalf of same-sex marriage could enshrine Hollingsworth and Windsor with Roe v. Wade, the 1973 abortion decision that imposed a judicial diktat even as laws in many states were liberalizing.
But Pilon points out that there is a much more obvious judicial parallel:
In fact, if politics is the issue, a far better analogy with the present cases is the Court’s 1967 decision in Loving v. Virginia, which found Virginia’s anti-miscegenation law, and those of 15 other states, unconstitutional under the Equal Protection Clause of the 14th Amendment. There, too, we had a controversial decision, handed down at the height of our civil-rights strife. But it did not lead to the unending controversy that has followed Roe, even though it was the Court, not state legislatures, that finally brought an end to laws banning inter-racial marriage.
One reason that Loving did not play out as has Roe is because the nation was more clearly moving in the direction of accepting interracial marriage than abortion, much as today we see a similar movement regarding same-sex marriage. Ironically, in invoking political considerations by way of urging “judicial restraint,” the Journal is asking the Court to consider matters that are not, strictly speaking, the proper business of the courts.
The parallels between the battle over same-sex marriage is identical in every meaningful way to the battle over interracial marriage in the late 60s and the result, I have no doubt, will be identical as well. Regardless of whether same-sex marriage is mandated by the legislative or judicial branch, we will look back on the current controversy in short order — 20 years, 30 at the most — and wonder what on earth all the fuss was about.
The WSJ also made this argument:
The Court ought to conclude on the merits that marriage as historically understood does have a “rational basis.” This version of the equal protection test properly defers to the deliberative judgment of voters and their elected representatives. Traditional marriage laws may support legitimate goals like promoting intact, reasonably stable wedlock between mothers and fathers for children, or simply stem from a desire to not experiment with a core unit of civil society.
And Pilon replies:
The question, however, if equal protection analysis is done properly, is not whether marriage has a rational basis but whether government discrimination against some of those who want to marry has a rational basis. Once the presumption is properly reversed and the matter properly put, the question then becomes, what is a “rational basis” for the government’s so discriminating? Unfortunately, under the Court’s modern equal protection jurisprudence, unless a plaintiff is seen as a member of a “protected class,” any “conceivable reason” will do — like those just mentioned, purporting to support traditional marriage (and exclude same-sex marriage). Regrettably, the history of such “rational basis” review — of judicial deference “to the deliberative judgment of voters and their elected representatives” — is one of majoritarian and, more realistically, special-interest tyranny, conjoined with ever diminishing liberty in countless areas of life.
There’s also a directly related question, which is that even if the importance of marriage to society is a rational thing for the government to attempt to support (and most would agree that it is), how does forbidding gay people to marry advance that goal at all? That is always the missing part of the anti-equality argument, which in essence is simply “marriage is good so therefore we must forbid gay people from marrying” — with no coherent or logical argument whatsoever connecting the premise with the conclusion.