Not Trusting the Voters

COMMENTARY Marriage and Family

Not Trusting the Voters

Aug 12th, 2010 2 min read

Former Senior Research Fellow

Chuck is a former Senior Research Fellow.

Now that a federal district court has struck down Proposition 8, California's voter-approved definition of marriage as the union of a man and a woman, speculation turns to whether the decision will hold up on appeal. After all, Judge Vaughn Walker went the last mile in a 136-page opinion to back up his view that not a single rational argument in favor of traditional marriage deserves constitutional respect.

Oddly enough, this very aspect of Judge Walker's Prop 8 decision most troubles some commentators, including those who favor same-sex marriage as a policy. In his zeal to sweep aside California voters' amendment of their state constitution and promote social change, Walker questions not only the law but the rationality of millions of Californians who advocated or voted for it.

University of Minnesota law professor Dale Carpenter, a proponent of same-sex marriage, says his concerns about the ruling outweigh what he sees as its merits. Rather than advancing the goal, Walker produced a "maximalist" opinion that stretches to decide "fundamental constitutional questions not strictly necessary to reach the result," Carpenter writes for the popular legal blog Volokh Conspiracy (

Walker, Carpenter adds, makes an "aggressive claim" that same-sex marriage is a "fundamental right." Not even Massachusetts' highest court attempted to do that in the first state constitutional ruling on same-sex marriage, back in 2003. Making same-sex marriage a fundamental right under the U.S. Constitution calls into question other lines drawn by states around marriage.

Polygamy is only one of many examples that come to mind.

Higher courts will be reluctant to go so far as to make same-sex unions a new fundamental right, Carpenter conjectures, and once they decline to do so, a "sweeping victory becomes a sweeping defeat."

Jonathan Rauch, writing in The New York Times a month before the Prop 8 decision, cautions against this kind of judicial intervention. Rauch advocates legal recognition for same-sex couples; he and his male partner were "married" in June under local law in the District of Columbia, though they don't live there.

But Rauch contends that federal courts, moving swiftly and contrary to public opinion on a sensitive social issue, aren't the place to resolve such disputes. "Whatever the activists on both sides say," Rauch writes, "nothing in the Constitution requires the Supreme Court to short-circuit the country's search for a new consensus, either by imposing gay marriage nationwide or by slamming the door on it with an aggressively dismissive ruling. Sometimes the right answer for the courts is to step aside and let politics do its job."

Here is where Walker's decision does the most harm. It presumes, and makes explicit with aggressive finding after aggressive finding, that the American people are incapable of reasoned debate, public civility and a successful search for consensus. In Walker's view, reluctance on the part of most Californians to embrace the redefinition of marriage can be traced only to ancient ideas about female inequality and religiously inspired prejudice.

This kind of denigration of public wisdom is solid rocket fuel for judicial activists. All modesty about the judicial role - Alexander Hamilton wrote in The Federalist Papers that judges must display "neither force, nor will, but merely judgment" - has evaporated. The solitary judge, sitting in his chambers with a wall full of books and the words of a few witnesses, is the only one who has the wisdom to wrestle with complex questions of social policy.

It needn't be this way. One of the glories of our nation of 50 states and nine territories is that government can remain close to the people. And one of the tragedies of so many policy debates today is the transfer of ever-more power to Washington. Too much power delegated to Congress and the bureaucracy is bad enough, but power put in the hands of unelected judges is difficult to reclaim.

Any fair reading of the American mind right now would find we are a tolerant people, but also a people concerned about family breakdown and the rush to abandon the wisdom of the ages about marriage. Judge Walker doesn't think such a people can be entrusted with the making of the nation's laws. That is the travesty, and potential tyranny, of his ruling.

Charles A. Donovan is senior research fellow in the DeVos Center on Religion and Civil Society at The Heritage Foundation.

First appeared in The Sacramento Bee