05/31/2012 01:14 am ET Updated Jul 30, 2012

Same-Sex Marriage and Judicial Responsibility

Earlier this week, Lambda Legal and the ACLU of Illinois filed separate lawsuits challenging the constitutionality of the Illinois law that denies gay men and women the right to marry. There is little doubt among constitutional experts that the challenged law is unconstitutional. The central question is whether our Illinois judges will have the courage to say so.

More than most Americans today realize, throughout much of our history gay men and women have been branded as criminals, sexual psychopaths and perverts. They have been imprisoned, beaten, sterilized, ostracized, castrated, psychoanalyzed and publicly humiliated. They have been compelled to hide an essential facet of their nature, to deny who they are and to pretend to be what they are not. They have been shadowed by fear, fired from jobs, shunned by family members and friends and forced to live lives of shame. The history of our nation's treatment of gay men and women is a national tragedy.

Over the past forty years, however, we have made remarkable progress. As gays and lesbians have tentatively but courageously revealed themselves to friends and family, the views of most Americans have gradually changed. Most Americans have come to realize that gay men and women are not creepy degenerates, but people "just like us." We have discovered, often to our surprise, that they are our sons and daughters, our brothers and sisters, our neighbors and friends. With that knowledge has come greater tolerance and understanding. For most Americans, it has been an extraordinary journey of enlightened thinking and moral progress.

But we still have a way to go. The most important remaining remnant of an era now largely behind us is the continuing denial to gay men and women of the freedom to marry. This is not a mere technicality, as some would have us believe, but a grievous insult to the dignity of good and decent people and to the inherent worth of their loving commitments to one another. Indeed, from a moral and legal perspective, the refusal to recognize gay and lesbian marriage today is no more defensible than the refusal to recognize interracial marriage fifty years ago.

In an editorial on May 14, the Chicago Tribune applauded both the shift in American public opinion on this issue and President Obama's public declaration that he supports same-sex marriage. The Tribune went even further and endorsed legislation in Illinois that would recognize the right of gay men and women to marry. At the same time, though, the Tribune cautioned that courts should stay out of this matter and should "defer to the voters and their elected representatives." This is flat-out wrong.

Courts have a fundamental responsibility to enforce the Constitution. It is not their job to make political judgments about whether it would be good or bad policy for them to hold an unconstitutional law unconstitutional. If they conclude that a law is unconstitutional, then it is their duty to say so and to declare the law null and void. They have no legal authority to deprive individual citizens of their fundamental constitutional rights until "the voters" decide to grant those rights on their own. Such an approach is incompatible with the very idea of constitutional freedoms.

Before any state legislature voted to enact same-sex marriage, five state supreme courts (Hawaii, Massachusetts, Connecticut, California and Iowa) first had to hold the denial of marriage equality unconstitutional. As in so many areas of individual liberty, it took courts to lead the way. Without the constitutional foundation and legal momentum generated by those judicial decisions, it is doubtful that any state legislature would have had the courage to take on this issue. It is the very independence of courts from the electoral process that gives them the authority and responsibility to protect rights otherwise denied by "the voters."

To wait on the outcome of the electoral process to protect the constitutional rights of a group that has for so long been demonized in our society would be especially problematic. Although opinion polls show that a majority of Americans now support same-sex marriage, that is no guarantee that reform will come through the electoral process. As we have seen repeatedly in state-wide referenda on this issue, single-issue, single-minded voters, well-funded by religious organizations and driven by religious fervor, can effectively block the will of the majority. In our constitutional system, this is precisely when courts must intervene.

This situation is not dissimilar to that facing the United States Supreme Court in 1967 when it held in Loving v. Virginia that marriage is a fundamental right and that state anti-miscegenation laws prohibiting marriage across the color line violate the constitutional guarantee of "equal protection of the laws." The justices unanimously understood that they could not legitimately "defer to the voters" and hold off reaching the correct constitutional decision while the nation waited for those who feared and despised interracial marriage to catch up with the Constitution. The same is true here and now.

In addressing the fundamental constitutional issues posed by these lawsuits, our Illinois judges -- like the judges in Hawaii, Massachusetts, Connecticut, Iowa and California -- must not "defer" to the vagaries of the political process. If they conclude that it is unconstitutional for the state of Illinois to deny its gay and lesbian citizens the freedom to marry, then it is their constitutional responsibility to so rule. I predict that they will. It will be a proud day for Illinois.

This appeared in the Chicago Tribune on May 31, 2012.