I would like to point your attention to the featured editorial in the Wall Street Journal today, Gay Marriage, Democracy and the Courts. It is a great argument that cuts through a lot of the rhetoric on both sides and draws the linkage between Roe v. Wade and gay marriage, i.e. the creation of a right where none exists.
This section is magnificent…
Even many supporters of legal abortion now consider Roe a mistake. Lacking any basis in the text, logic or original understanding of the Constitution, the decision became a symbol of the judicial usurpation of authority vested in the people and their representatives. It sent the message that judges need not be impartial umpires—as both John Roberts and Sonia Sotomayor say they should be—but that judges can impose their policy preferences under the pretext of enforcing constitutional guarantees.
By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Abortion, which the Court purported to settle in 1973, remains the most unsettled issue in American politics—and the most unsettling. Another Roe would deepen the culture war and prolong it indefinitely.
Some insist that the Supreme Court must invalidate traditional marriage laws because “rights” are at stake. But as in Roe, they are forced to peddle a strained and contentious reading of the Constitution—one whose dubiousness would undermine any ruling’s legitimacy.
I think the case here is pretty solid. Roe v. Wade was wrongly decided but has become such a contentious issue that the legal precedent has stood for decades. We face the same situation with gay marriage. If the Supreme Court creates a "right" to gay marriage where none exists, we will find ourselves in the midst of another front in the culture war created by a wrongly decided Supreme Court case, another instance of the court overstepping itself and creating rights where none exist. If Vermont wants to let gay people "marry", that is their prerogative. If Michigan chooses to not recognize that "marriage" that is our prerogative. If the Supreme Court says that Michigan has to recognize these legal constructs, then we have a problem.