May 24, 2008
By Robert Alt
Last week's decision by the California Supreme Court,
discovering a right to same-sex marriage in the state constitution,
was greeted with glee by homosexual-rights advocates across the
state and across the country. But such jubilation is misplaced,
because the decision will likely result in a significant and
lasting defeat for same-sex marriage advocates, both in California
and beyond. By removing the issue from the political branches and
constitutionalizing the policy question, the court's decision makes
compromise less likely and leaves a state constitutional amendment
as the only possible response - one in which same-sex marriage
advocates are not likely to prevail.
The California case did not present the question of whether
same-sex couples were entitled to any legal recognition of their
relationships. That question had already been settled by the
legislators, who established a domestic partnership law which
provided same-sex couples with virtually all the rights and
privileges of marriage, including the ability to make medical
decisions, file joint state tax returns, and change surnames. The
question before the court was therefore more modest: Does
restriction of the title "marriage" to opposite sex couples violate
the state constitution?
To this modest question came an answer of judicial immodesty.
Indeed, as works of judicial activism go, the California Supreme
Court's decision is the Mona Lisa. The 100-plus page opinion
begins, ironically enough, by stating "our task in this proceeding
is not to decide whether we believe, as a matter of policy, that
the officially recognized relationship of a same-sex couple should
be designated a marriage rather than a domestic partnership, but to
determine whether the difference in the official names of the
relationships violates the California Constitution." Of course, a
judge writes this kind of a sentence only as a prologue to penning
a policy judgment. And the decision does not disappoint.
Doing what once quaintly was thought to be the work of
legislators, the court makes quick work of the task of weighing the
relative importance of maintaining a traditional definition of
marriage against denying same-sex couples the right to have their
relationships accorded the "dignity and equal respect" afforded
traditional families. It finds the justifications for maintaining
even the label of marriage for traditional opposite-sex couples
In so doing, the California Supreme Court disregarded the will
of the people of California as expressed by 61 percent of the
voters, who in 2000 passed an initiative defining marriage as
involving one man and one woman. Now, it's true that in
constitutional systems of government, the will of the majority is
not supreme if it is contrary to the constitution. But here there
is not a grand and undefined right of marriage in the constitution.
Rather, the court finds that amorphous right in prior activist
rulings concerning substantive due process. And so the decision is
activism building upon activism. Little wonder the court felt it
necessary to include that initial caveat about its proper role.
This is no way to make public policy. Indeed, up until now, the
political process had produced the possibility (and actuality) of
compromise between divergent interests on this hotly disputed
question, leading to the adoption of, and multiple amendments to
California's domestic partnership laws.
But by removing the question from the political process,
same-sex marriage advocates now eliminate the possibility for
incremental changes or compromises regarding the outcome. Rather,
opponents of same-sex marriage must now seek a state constitutional
amendment if they are to reclaim the issue from the judges. Given
that such an amendment - which was drafted and had signatures
submitted before this present case was decided - appears on the
verge of qualifying for the November ballot, and sensing the degree
of discontent that this decision has engendered with Californians
(who don't take kindly to courts striking down their prior
initiatives, thank you very much), it's now far more likely that
this state constitutional amendment will pass. And for this, the
California Supreme Court, and those who pushed this end-run around
the political process, deserve much of the credit.
Over the past 40 years, the courts have increasingly become
arbitrators of policy, rather than interpreters of law. By
asserting themselves into the political process, judges
increasingly are viewed as merely political actors, decreasing
their respect as neutral arbiters by the people. The courts should
return to a more modest, constitutionally appropriate role, and
leave policy questions to the politically accountable branches and
the invention of new rights to the constitutional amendment
process. To do otherwise is to invite the kind of constitutional
rebuke which may await the California Supreme Court.
Robert Alt is a
senior legal fellow and deputy director of the Center for Legal and
Judicial Studies at The Heritage Foundation
First Appeared in FOXNews.com
Last week’s decision by the California Supreme Court, discovering a right to same-sex marriage in the state constitution, was greeted with glee by homosexual-rights advocates across the state and across the country. But such jubilation is misplaced, because the decision will likely result in a significant and lasting defeat for same-sex marriage advocates, both in California and beyond. By removing the issue from the political branches and constitutionalizing the policy question, the court’s decision makes compromise less likely and leaves a state constitutional amendment as the only possible response — one in which same-sex marriage advocates are not likely to prevail.
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