I disagree with Mr. Yoo on the policy goal, but he is correct in describing how we should resolve the issue.
In deciding Perry v. Schwarzenegger last week, Judge Walker struck down California's Proposition 8, which banned gay marriage, as a violation of the rights of gays to equal treatment under the law. Judge Walker did more than distort settled precedent and sweep aside centuries of practice. He short-circuited the Constitution's democratic process for the resolution of moral disagreements.
A single judge, he elevated himself above the collective wisdom of millions of California voters and the considered judgment of state and federal officials.
The Constitution does not set up the federal courts as a roving commission of do-gooders to correct all of the nation's problems. The courts, populated by a small number of older lawyers deliberately isolated from the people and inexpert in any field, are likely to cause more social diseases than they cure.
This distortion of the judicial role and rending of the political fabric are wholly unnecessary. The Constitution creates a far better approach to decide contentious moral issues: federalism. Under our decentralized system of government, states offer different combinations of taxes, spending and rights. Citizens can vote with their feet and live in the states that satisfy their preferences.
We trust federalism on other fundamental questions, like life and death. Gay marriage should be treated no different than capital punishment, euthanasia and the basic questions of education, welfare and the family. During the Constitution's ratification, Alexander Hamilton assured New Yorkers that the Constitution would never permit the federal government to "alter or abrogate" a state's "civil and criminal institutions [or] penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals."
Federalism will produce the political durability that supporters of gay marriage want. If states steadily approve, a political consensus will form that will be difficult to undo.
Consider, by contrast, abortion. Roe v. Wade (1973) only intensified political conflict at a time when the nation was already moving in a pro-choice direction. The decision tied the fate of abortion to the whim of the courts. It poisoned our politics, introduced rounds of legislative defiance and judicial intervention, and undermined the neutral principles of constitutional law.