J. Peder Zane

Zane: Changing attitudes will topple same-sex marriage bans

Gay marriage is coming to North Carolina a lot sooner than Thom Tillis imagined. While pushing the constitutional ban on same-sex marriage in 2012, the House speaker predicted it would be repealed within 20 years.

The wheels of progress are moving so quickly that, just two years later, Tillis might have to drop a zero from his prediction. The direct catalyst is a federal court’s decision earlier this month overturning Virginia’s ban on same-sex marriage. The judge also issued a stay of her decision pending an expected appeal to the U.S. Court of Appeals for the Fourth Circuit in Richmond.

North Carolina is part of the fourth circuit, and if the court upholds the ruling, it could void our state’s ban. Even if that doesn’t happen, an ACLU case challenging North Carolina’s ban set to be heard in Greensboro presents a strong challenge to the law.

Supporters of the ban should not be hopeful. Legal decisions do not occur in a vacuum; they usually reflect the spirit of their times. The tide has turned on gay marriage with breathtaking swiftness. When Hawaii became the first state to sanction same-sex unions in 1993, most Americans opposed it. Reflecting this sentiment, Congress passed and President Bill Clinton signed the Defense of Marriage Act in 1996 defining marriage as between a man and a woman. During the 2008 presidential election, both Barack Obama and Hillary Clinton said they opposed gay marriage.

Today, 17 states and the District of Columbia allow it. The president now supports it, as do many leading Republicans. A recent Gallup poll found that 60 percent of Americans – including 81 percent of those under age 30 – believe same-sex marriages should be legally recognized, a 50 percent increase since 2009. Recent efforts by legislators in Kansas and Arizona to defend “religious liberty” by allowing people to discriminate against gays and lesbians are not a potent new front in the fight but a last gasp of a lost cause.

Many people believe the Supreme Court will ultimately decide the issue. Last year, the court suggested how it might rule when it struck down DOMA by a 5-4 vote. Writing for the majority, Justice Anthony Kennedy pronounced that marriage involves fundamental questions of equality, human rights and dignity.

This is welcome news. We have no right to make people second-class citizens because of who they love. If society’s goal is to provide the greatest good to the greatest number of people then allowing citizens to pursue happiness in ways that do not injure others is a no-brainer.

Same-sex unions will benefit all Americans by strengthening the institution of marriage – which is under assault by heterosexuals who are divorcing and having out-of-wedlock children at alarming rates. Bringing gays and lesbians into the fold will allow businesses and the government to stop offering the benefits of marriage to people who are only living together. Here’s a law we should pass: If you want the benefits of marriage, get married.

Some argue that same-sex marriage will send us down a slippery slope where anything goes, including incest, polygamy and bestiality. This misses the point that the state crossed the marriage Rubicon when it gave itself the authority to define legal marriage. Expanding it to same-sex couples is merely an extension of this power. If incest, polygamy and bestiality become acceptable in mainstream society, then the definition could be expanded to include those practices. These are not moral questions, but democratic ones.

This is why the incredibly high bar for amending the U.S. Constitution makes far more sense than the majority vote standard used by many states. We should tie the hands of descendants only in rare circumstances. In a world where truth is what works today, there are few timeless principles to stand on (most are covered in the first 15 amendments to the Constitution).

It is also why I have mixed feelings about the courts taking the lead on this issue. Yes, they are political instruments that tend to reflect public opinion. If the courts overturn bans on same-sex marriage, they are not imposing their views on the public but expressing popular will. Still, the ballot box is a better vehicle for reflecting that.

Thom Tillis and his legislative colleagues were not elected to assert the will of their supporters upon the state but to represent all the people. The voice we heard two years ago is not the same one we are hearing today. They won’t, but should, listen to these calls for freedom echoing from Sanford to San Francisco.