As the ruling in Perry v. Schwarzenegger, which overturned California’s Proposition 8, makes its way through the appeals process, one of the big questions concerns the impact of another case: Lawrence v. Texas. That 2003 Supreme Court decision overturned the Texas law making sodomy a criminal offense.
Judge Vaughn Walker clearly thinks that the line between Lawrence and his ruling is clear. His opinion not only cited Lawrence – it was, as many commentators have noted, practically written for an audience of one: Justice Anthony Kennedy, the author of the Lawrence decision, and the likely swing-vote on the Supreme Court.
But is the link as clear as Walker and his supporters say it is? No. Especially when you take public attitudes into account.
At the time Lawrence was decided, Texas was one of only thirteen states that made sodomy a crime. In the rest of the country, consensual same-sex acts had been made legal by legislation.
In other words, the public had adopted what could rightly be called a tolerant view of these acts: whatever people thought of homosexuality, they didn’t think it was a matter for the criminal law, and the political process reflected this cultural and political consensus.
Thus, the ruling in Lawrence, whatever its constitutional merits, ratified an already-existing consensus – it didn’t set out to impose one. Even justice Thomas, who dissented from the majority opinion, called the Texas law “uncommonly silly.”
The same cannot be said of the ruling overturning Proposition 8. Only five states and the District of Columbia permit same-sex marriage and half of those are the result of court rulings. What’s more, the trajectory of public, as distinct from elite, opinion has been clearly to ratify the traditional understanding of marriage as the union of one man and one woman.
Since 1993, when the Hawaiian Supreme Court upheld same-sex marriage, the American people have consistently made their opposition clear at the polls. Every time the issue has been on the ballot (31 states in all), voters have rejected same sex marriage.
This despite being outspent by same-sex marriage proponents and always being vilified in the media and elite opinion.
All of this exposes the claim that we’re trying to “impose” our view on others. We aren’t doing that. That’s ludicrous! We’re simply defending the democratic consensus.
The only way to counter this distortion is if we do it ourselves: present our case winsomely and persistently.
And, given what’s at stake in this battle, we don’t have any choice. The battle over this California case involves more than same-sex marriage or even the institution of marriage. As the Manhattan Declaration points out, the biggest threat to religious freedom comes from those who want to redefine marriage and impose a particular view of sexual morality on all of us.
How could pastors denounce sinful behavior held by a court to be a constitutional right? The only way to keep that from happening is to make clear—to make known—the great consensus in America in support of traditional marriage. Because courts rarely go against that.