Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

The End of Pluralism?

David Coolidge


December 23, 1996

Everyone knows it by now: thanks to the courts, "same-sex marriage" may be legalized in Hawaii. What began as a mere ripple on the horizon may become a tidal wave sweeping across the country.

Is this the triumph of tolerance, or the end of genuine pluralism?

Until now, the American legal system has embodied (however imperfectly) at least two basic concepts: (1) marriage is a fundamental institution of civil society, created neither by individuals nor by the government, and (2) citizens rather than judges bear ultimate human authority to frame our constitutional order. Both concepts are vital to genuine democratic pluralism.

Now, however, the courts of Hawaii have embarked on a course that attacks these core concepts. A Honolulu court has ruled (1) that marriage is a creation of the state, and (2) that the individual-rights provisions of the Hawaii State constitution demand the legalization of "same-sex marriage." Marriage is being redefined, and in a way that excludes normal citizen participation.

In May of 1993, the Hawaii Supreme Court decided that a male-female marriage law was "sex discrimination" under the Hawaii Constitution and must be held unconstitutional unless the State could "demonstrate" a "compelling state interest" to justify such "discrimination." It sent the case, Baehr v. Miike, back to a lower court for a trial, which was held in September. On December 3, Judge Kevin Chang decided that the State had failed to "demonstrate" its case. However, he has delayed implementing his order while the Hawaii Supreme Court reviews it.

Marriage, therefore, is on the brink of being redefined as a state-created legal category. On these terms, any individual joined in any relationship may be able to claim an equal right to marital status and benefits. The citizens of Hawaii, not to mention those of the United States, have not even been consulted about these dramatic steps. Public opinion polls show over 70 percent opposition to "same-sex marriage" in Hawaii. Is our constitutional democracy to be turned over entirely to unelected judges?

Make no mistake about it: If "same-sex marriage" is legalized, it will not be a private matter. Every State's traditional laws will be challenged, and if they fall, the law of the United States will have a single message: "Marriage is any committed relationship between adults; no moral judgments allowed." All school systems, non-profit organizations, private companies, and local agencies—and all individuals functioning within them—will have to conform to this policy, or they will be stigmatized. Those individuals or groups who question the newly dominant morality will be treated no better than racists.

If this is not the end of pluralism, what is?

Some will ask whether justice requires laws for persons in same-sex relationships. This is a different issue. Resolving that question does not require that the institution of marriage be redefined and can be addressed through regular legislative processes.

Thankfully, the debate about marriage is not over. It is really just beginning. Citizens of Hawaii and of every State in the nation now have the opportunity to have an impact. Each State legislature must decide what to do about "same-sex marriage." Now is the time to communicate your views on this subject to your elected officials. Judges may step in to try to stop us from governing ourselves, but it is our right—and duty—to speak up for marriage, for self-government, and for genuine pluralism.

—David Orgon Coolidge,  Director of the Marriage Law Project
    Ethics and Public Policy Center

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”