The Danger in Appeasing Gay Rights Activists

COMMENTARY Marriage and Family

The Danger in Appeasing Gay Rights Activists

May 17, 2008 5 min read

Former Distinguished Fellow

Ernest served as a Distinguished Fellow at the Heritage Foundation.
The law was just a plaything to California's Supreme Court, and the justices twisted logic into a pretzel as they legalized same-sex marriage by judicial fiat.

The court also exposed the danger created by wishy-washy lawmakers who push "civil unions" or "domestic partnerships" as a supposed middle-ground compromise. That actually is a deadly policy of appeasement. It was the very existence of such laws that the justices used to justify this outrageous decision.

By trying to appease homosexual rights activists, those who have refused to stand up for traditional marriage helped to create this court ruling. They are the Neville Chamberlains of the cultural wars.

In essence, California's highest court yesterday decreed that society cannot have a "separate but equal" matchmaking plan for same-sex couples.

The moment California or any other state adopts civil unions, this decision makes clear, it's on the slippery slope that makes same-sex marriage inevitable.

This ruling also further disenfranchises citizens and voters. The court not only usurped legislative power, it ignored the clear will of the 61 percent of California voters who in 2000 placed into law this language: "Only marriage between a man and a woman is valid or recognized in California."

A lone justice, Marvin Baxter, wrote a clear dissent describing how radical the ruling is and what he called the "legal jujitsu" used by the majority to rationalize its decision. Two other justices dissented, but not as forcefully as Justice Baxter.

The high court ruled that the existence of a "domestic partners" statute compelled it to overturn California's marriage law and permit same-sex marriages. Otherwise, the court said, it would be a denial of equal protection if same-sex couples could get advantages similar to marriage but not actually be married as opposite-sex couples can.

The lesson? Lawmakers across the country who have promoted domestic partnerships as a compromise now are exposed as enablers of the full same-sex marriage agenda. They should be held accountable accordingly.

And places that have adopted such civil union laws should repeal them right away, lest they invite a blitzkrieg of more court decisions from activist judges, mimicking the California edict.

As the majority wrote for California's Supreme Court:

"California . . . in recent years has enacted comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple.

"Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship . . . but under which the union of an opposite-sex couple is officially designated a 'marriage' whereas the union of a same-sex couple is officially designated a 'domestic partnership.'"

But Justice Baxter correctly noted that California's high court made a three-way power shift that violates American principles of constitutional law:

  • It usurped the state legislature's authority to make laws, violating separation of powers.
  • It usurped the people's authority to make laws via initiative and referendum.
  • Because the state constitution prohibits legislators from repealing laws passed by popular vote, the court gave the lawmakers a new power to repeal such laws indirectly.

Justice Baxter said it well. He wrote in his dissent:

"Nothing in our Constitution, express or implicit, compels the majority's startling conclusion that the age-old understanding of marriage-- an understanding recently confirmed by an initiative law-- is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.

"The majority's mode of analysis is particularly troubling. The majority relies heavily on the Legislature's adoption of progressive civil rights protections for gays and lesbians to find a constitutional right to same-sex marriage. In effect, the majority gives the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative statute. But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.

"Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.

"In doing so, the majority holds, in effect, that the Legislature has done indirectly what the Constitution prohibits it from doing directly. Under article II, section 10, subdivision (c), that body cannot unilaterally repeal an initiative statute . . . Yet the majority suggests that, by enacting other statutes which do provide substantial rights to gays and lesbians-- including domestic partnership rights which, under [Family Code] section 308.5, the Legislature could not call 'marriage'-- the Legislature has given 'explicit official recognition' (maj. opn., ante, at pp. 68, 69) to a California right of equal treatment which, because it includes the right to marry, thereby invalidates section 308.5.

"I cannot join this exercise in legal jujitsu, by which the Legislature's own weight is used against it to create a constitutional right from whole cloth, defeat the People's will, and invalidate a statute otherwise immune from legislative interference."

California's high court noted that other states are looking at this equal-protection argument as a basis for moving all the way to full-blown same-sex marriage in places where civil unions or domestic partnerships have been established.

Those who support traditional values--and an orderly democratic process that lets the people and their elected officials make decisions about marriage--should recognize the dangers inherent in this California decision. Any law that mimics marriage by another name needs re-examining and probably repeal as well, lest it become full-blown same-sex marriage.

California voters probably will vote this fall on changing their statutory marriage protection into stronger constitutional protection. Voters there and in other states would be wise to elevate this matter into an election issue in every other state as well, because it is elected officials who created this opportunity for wayward judicial activism by trying to placate a radical agenda rather than standing up against it.. Those elected officials should not be permitted now to blame it all on the judges, wringing their hands and trying to deny their complicity.

It's time to hold accountable those lawmakers who have opened the door for this court ruling by trying to appease homosexual rights activists with laws that allow civil unions. You cannot have peace at any price with those who seek to conquer and vanquish our values.

Ernest Istook is recovering from serving 14 years in Congress and is now a distinguished fellow at The Heritage Foundation.

First appeared in Human Events

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