Stuart Taylor Jr. and Rich Lowry argue that California Supreme Court's decision favoring gay marriage is indicative of the court's usurpation of legislative power.
Taylor tells us that though he "wholeheartedly support[s] gay marriage" the decision was "an unfortunate exercise in judicial imperialism":
First, the California court's 121-page opinion was dishonest. This was most evident in its ritual denial of the fact that it was usurping legislative power: "Our task ... 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 instead only to determine whether the difference in the official names of the relationships violates the California Constitution [emphasis in original]."
This was a deeply disingenuous dodge, if not a bald-faced lie, to conceal from gullible voters the fact that the decision was a raw exercise in judicial policy-making with no connection to the words or intent of the state constitution. It is inconceivable that anyone but a supporter of gay marriage "as a matter of policy" could have found in vague constitutional phrases such as "equal protection" a right to judicial invalidation of the marriage laws of every state and nation in the history of civilization.
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The California court's majority descended into especially slick sophistry when it suggested that the many gay-rights reforms that the state's elected branches had already adopted were not a reason to let the democratic process work but rather a mandate for judicial imposition of gay marriage. The message to voters in other states may be: If you give the judges an inch on gay rights, they will take a mile.
Also disingenuous was the majority's vague dismissal of the powerful argument by opponents of judicially imposed gay marriage that the made-up constitutional principle underlying the decision would also--if seriously applied--require the state to recognize polygamous and incestuous marriages among adults.
Chief Justice Ronald George's majority opinion exuded impatience bordering on contempt for the government by the people that is the foundation of our democratic system. California's voters and elected branches had already made great progress toward full legal equality for gay couples. They enjoyed all of the state-law rights and privileges of marriage except the name, which 61.4 percent of the voters had reserved for heterosexual couples in a 2000 ballot initiative. California's domestic-partnership laws were more generous to gays than the laws of almost all other states and almost all nations.
He then goes on to point out that since Obama seems supportive of this decision, if he wins the presidency we might expect to see more of this type of imperial behavior. Lowry makes many of the same points about judicial power:
If the California decision stands, it will again legitimize judges governing by fiat. That will bail out evasive liberal politicians who fear being forthright about their views and hope merely to step out of the way while judges impose them.
For the cause of self-government, it's a disaster.
I offer a dissent. Though concerns about the increased power of any governmental institution bears scrutiny, both authors--any most commentators period--seem to forget a basic point about the nature of a republican for of government.
A "government of the people" can defined in two ways, each in tension with the other. The first is that the decisions of government must rest with the people, and majority rule ought to be the guiding principle determining which side wins. The other is that the people, that is each individual person, has a right to life, liberty, and the pursuit of happiness free from the oppresive hand of government. In a democracy, that oppresive hand can be the will of the majority. Democracy and liberty--that is the liberty of each person, especially the weaker party or the obnoxious individual--are in conflict.
The legislative power, indeed any power associated with a majority rule, facilitiates majority oppression of an unpopular minority. Only an institution that is immune from majority will can protect the unpopular. That these decisions create an uproar among the majority is an expected part of the process and very likely the most powerful justification for the favorable decision. It's the heart of the checks and balances. All power is subject to check, and no one is happy to be checked.
Regardless of the relative merit of marriage policy, or any policy for that matter, the fact that a court is securing the rights of an unpopular minority against the majority indicates that the courts are working as intended. Both authors employ the slippery slope argument unconvincingly to warn that future errant policies will be inevitable and actively imposed on a reluctant majority.
It is ironic that Taylor cites the racial discrimination cases of decades back:
[California Supreme Court Chief Justice] George analogized domestic partnerships to the "separate but equal" laws of the segregated South, including laws making interracial marriage a crime in some states until they were struck down by the U.S. Supreme Court in 1967. (The California court, admirably, had voided that state's ban on interracial marriage in 1948.) The chief justice thus insulted the voters--not to mention all three presidential candidates--and treated California's denial of official benediction as the legal equivalent of the Jim Crow South's system of grinding oppression.
If I recall, racial segregation was supported by comfortable majorities and changes in attitudes only began after the Brown v. Board of Education decision. Had judges not made the decision to be activist and overturn racial segregation by fiat when, it is not unreasonable to think that we would still be living in a society that condoned racial segregation--or at least made accomodation to it. We haven;t chaged that much as a species in the past 50 years. Ironically, the same arguments the two men use now on the subject of sexual orientation was used then on the subject of race. Let the legislatures decide. Activist judges are cramming their morality down the throats of the people (or at least the majority).
This isn't activism, its the checks and balances in action.
