It’s been an interesting week or so for gay marriage in America, with two more states jumping on the bandwagon in fairly rapid succession.

The first state, Iowa, has picked up gay marriage as the product of a story which is all too familiar.  The Iowa Supreme Court, in a grand act of contempt for democracy which is consistent with other judicial impositions of gay marriage, did not appear to break any meaningful new ground in their writing.  The Iowa is perhaps (but only perhaps, for I do not know Iowa law on this point) different from other recent cases only in that this decision may have affected substantive rights, in contrast to the decisions of the California and Connecticut courts which mandated, only, that one particular term for a set of rights be used rather than another.  If indeed there was a difference in fact and substance between the legal protections available to homosexuals as compared to heterosexuals, then the ultimate outcome of the case is likely far less egregious than the line of reasoning used by the court.

The line of reasoning makes clear, however, that legal inequality was not the court’s primary concern, if indeed the court cared about it at all.  The tragedy of legal absurdity to follow was foreshadowed early on by the court as it listed off several things which unmarried “couples” have no entitlement to in Iowa, with the capstone being “the inability [of homosexuals] to obtain for themselves and for their children the personal and public affirmation that accompanies marriage.”  Such an affirmation, however, cannot be conjured into being by the courts.  In a society characterized by representative government, the law typically reflects those things which are currently accepted by society and are typically neutral or hostile to things which are not; in other words, laws embody the beliefs of the people.  As we should have learned from the Jim Crow era following the Civil War, people seldom embody (or follow) the beliefs underlying laws with which they disagree.

Changing the people, as we have been seeing in the nation generally and now showcased in Vermont in particular, is a purely democratic endevor.  Although proponents of gay marriage remain a minority when compared to opponents of the practice, the numbers have tended to level out with time.  I have little doubt that within the next decade or so, the balance will shift and proponents of gay marriage will outnumber those opposed.  An unfortunate consequence of judicial activism today is that it will take several decades to build a sufficiently strong gay marriage majority to overturn the constitutional amendments which now restrict the practice.

While it is impossible to say whether Vermont would have approved gay marriage had they not had civil union imposed upon them years ago by their courts, their grant of marriage now is an outstanding example of how the process ought to run.  By building a democratic consensus strong enough to survive a veto, the acceptance of gay couples in Vermont by their fellow citizens — the people whose acceptance actually matters in the end — will be far greater and more stable than it is likely to be in Iowa.  Vermont now actually has something to be proud of, as the first state to voluntarily grant marriage rights to gay couples.