05/16/2009 05:12 am ET Updated May 25, 2011

Vermont and Iowa Take Different Paths to Gay Marriage

I love legislatures. When a legislature considers an issue, there is an opportunity to build coalitions. Ordinary people can communicate with their representatives. Compromises are possible. The process is open. Legislatures are where democracy happens.

That is why the action of the Vermont legislature overturning the gubernatorial veto of a gay marriage bill was so satisfying. Everyone had a say in that fight and the legislature finally recognized the simple justice of gay marriage. Of course, many people in Vermont disagreed with the legislature's decision, but they should have felt that the process was fair and that their opinions were heard. Furthermore, opponents of gay marriage will have the chance to vote against representatives they disagree with at the next election.

On the other hand, I don't trust courts. Judges are secretive and self-important. You have to hire a lawyer to speak to them because judges do not listen to ordinary people and they don't speak in ordinary ways. Courts are anti-democratic.

That is why the action of the Iowa State Supreme Court on April 3 legalizing gay marriage was so unsatisfying. The decision spoke the specialized language of equal protection, with levels of review, tiers of protection and over and under inclusion. I doubt a thousand people read that opinion. Certainly, the court did not convince anyone who did not already support gay marriage. It was just raw judicial power.

Both actions will be effective in legalizing gay marriage. The Vermont change was genuinely popular and will not be overturned. The Iowa court decision would perhaps be overturned if there were a vote on a State constitutional amendment--like Proposition 8 in California--but the Democratically-controlled legislature is expected to bottle up any proposed amendment, so the matter will probably not go to the people.

The longer term political fallout will be different in the two States, however. In Vermont, gay marriage will be an issue, but it will be debated in the open. The Democratic Party and other progressive causes will probably not be affected.

In Iowa, the debate will now move away from gay marriage to the question of whether the people should have a say in the matter. The Democratic Party will pay a price for its perceived obstruction of the people's will. The simple justice of recognizing gay marriage will be obscured by procedural objections to blocking a statewide vote. Other progressive causes will suffer as well as Republicans benefit from this shift in subject matter. Although a constitutional amendment can be blocked, Iowans will get to vote in 2010 on holding a State constitutional convention. Such a convention could not only propose overturning the gay marriage decision, but might propose all sorts of other changes to the Iowa State Constitution.

The underlying point is that fundamental issues of social organization should not be decided by courts, but by ordinary democratic processes. When judges try to preclude political debate on such issues, they usually exacerbate divisions among the public. If, for example, Roe v. Wade had never been decided, America might have reached an acceptable and stable compromise on abortion years ago.

Similarly, gay marriage was on its way to acceptance before courts got involved, by way of compromises like civil unions. Now, in the wake of judicial approval of gay marriage in some States, thirty States have adopted bans on gay marriage. In these States, the ordinary give and take of legislative politics has been eclipsed by the winner-take-all process of referenda and amendment. This is not progress.

The Iowa decision illustrates another defect in attempted judicial resolutions of complex social issues. In order to strike down the traditional definition of marriage, a court must evaluate the reasons behind that definition. The Iowa court unanimously held that upholding traditional morality is not a sufficiently important government goal to justify excluding gay people from marriage. But upholding traditional morality is the basis of much of our law. The feeling that particular conduct is morally wrong is usually the main reason that the conduct is prohibited. Just think for a moment of why cruelty to one's own pet is against the law.

The Iowa court also held that religious reasons are behind much opposition to gay marriage and that religious reasons are not appropriately considered as a justification for government action. But again, people have all kinds of reasons for their political positions and the fact that religion may be a factor is not usually grounds for invalidating government policy. Think here of religious support for civil rights.

The federal courts have been far wiser. Those courts have avoided the issue of gay marriage.

Since proponents of gay marriage say that they are being discriminated against, it is fair to ask when courts should get involved in such claims. One answer is that groups that are excluded from politics need judicial protection. Such exclusion has been true of gays in the past, but fortunately is not true today.

The other role for courts is to express principles that the people either already accept or will come to accept. Brown v. Board of Education, which in 1954 outlawed official racial segregation, was immensely controversial, but its principle of racial equality was undoubtedly a national majority sentiment the day the decision was announced.

The United States Supreme Court has already acted to enforce widely shared principles in regard to gay rights. In 2003, the Court held that States could not criminalize gay sexual relations. Most States had already repealed such laws and the public immediately recognized the justice of this position. That case never became grist for right-wing mills. One day, when many States have adopted gay marriage through the actions of State legislatures, the Supreme Court may come to a similar conclusion about gay marriage. For now, however, gay marriage belongs to ordinary politics and its eventual acceptance will only be enhanced by avoiding courts and allowing the legislative process to work.