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OPENING ARGUMENT

Gay Marriage by Judicial Decree

California 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.

I wholeheartedly support gay marriage. And I am happy for the many gays who rejoiced at the California Supreme Court's 4-3 decision on May 15 ordering the state to stop calling committed gay couples "domestic partners" and start calling them "married."

So why do I see the decision as an unfortunate exercise in judicial imperialism? Let me count the ways. Then I'll touch on how it could be a harbinger of the constitutional innovating that we might see if the next president engineers a strong liberal majority--a likelier prospect than a strong conservative majority--on the U.S. Supreme Court.

 

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.

To be sure, this was not exactly a bolt from the blue. The steady accretion of both state and federal judicial power since the 1950s has left a malleable mass of hundreds of precedents straying ever-further from the original understanding of the constitutions and laws they purport to be "interpreting." This made it easy for the California court to take the leap--as the Massachusetts Supreme Judicial Court had done in 2004--to overriding the state's voters on gay marriage in the guise of enforcing "the ultimate expression of the people's will."

 

But President Franklin Roosevelt's indictment of the conservative U.S. Supreme Court of the 1930s, which struck down much of the New Deal, fits here as well: "The Court ... has improperly set itself up as ... a superlegislature ... reading into the Constitution words and implications which are not there, and which were never intended to be there."

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.

 

But to the majority, this domestic-partnership-but-not-gay-marriage compromise--also advocated by Barack Obama, Hillary Rodham Clinton, and John McCain--was "a mark of second-class citizenship." 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.

This is not to deny the importance to many gay couples and their children of being officially recognized as "married." They should be treated as married. But to decree this by judicial fiat has large costs to democratic governance. Judicial power to override the deeply felt values of popular majorities should be used sparingly, to enforce clear constitutional commands or redress great injustices, not deployed whenever the judges think they can improve on the work of the elected branches or accelerate progressive reforms already under way.

Also troubling is the majority's eagerness to move beyond enforcing substantive rights into dictating what words the government must and must not use: Same-sex couples, the majority ruled, have a "fundamental right ... to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships."

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This urge to regulate government speech resonates with the logic of those federal judges who have sought to strip "under God" out of the Pledge of Allegiance. Can court-ordered erasure of "In God We Trust" from U.S. currency, and perhaps a judicial rewrite of the National Anthem, be far behind?

Also troubling is the majority's eagerness to move beyond enforcing substantive rights into dictating what
words the government must and must not use.

It's true, as defenders of the California decision stress, that the justices there and elsewhere are politically astute enough to avoid flying too boldly into the teeth of public opinion; that Gov. Arnold Schwarzenegger has accepted the decision; and that California's voters will have a chance to override it, if they choose, through the state's ballot initiative process. All of this mitigates the affront to democracy. But it is still an affront, no less for the fact that three of the four majority justices are Republican appointees.

And while conservative judges are not above displacing democratic choices with made-up constitutional law (see my July 7, 2007, column, p. 12), that urge seems stronger on the Left.

Looking to the future of the U.S. Supreme Court, a sharp lurch to the right seems unlikely. Even if McCain wins the presidency and ends up replacing liberals John Paul Stevens and Ruth Bader Ginsburg--who at 88 and 75, respectively, are the oldest justices--an enhanced Democratic majority in the Senate would no doubt block any strong conservative nominees to replace them.

A Democratic president, on the other hand, would probably have a free hand to appoint the sort of justices envisioned by Obama, who opposed the nominations of Chief Justice John Roberts and Justice Samuel Alito. Obama has suggested that his criteria would not be fidelity to constitutional text or modesty in the use of judicial power, but rather "what is in the judge's heart" and "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

Based on the wish lists published by liberal judges and law professors, justices who fit Obama's description might well invent federal constitutional rights not only to gay marriage but also to Medicaid abortions, physician-assisted suicide, human cloning, and perhaps free medical care, food, and housing for poor people; strike down the death penalty (as Stevens recently advocated) and laws making English the official language; ban publicly funded vouchers for poor kids to attend parochial schools; bless ever-more-aggressive use of racial and gender preferences; and more.

As a policy matter, this prospect worries me less than it does my conservative friends. I support legislative adoption not only of gay marriage but also of Medicaid abortions and some other policies on the liberal wish list. And I would not much miss the death penalty, "under God," or "In God We Trust."

But I am concerned about the gradual, relentless strangulation of Abraham Lincoln's vision of ours as "government of the people, by the people, for the people," by judges who see constitutions not as binding law but as invitations for judicial rule.

I am also struck by the official list of "Attorneys for Respondent" joining amicus briefs supporting gay marriage in the California case. It included more than 700 lawyers, law firms, and legal groups. Justice Antonin Scalia had a point in complaining 12 years ago, when his colleagues struck down a Colorado ballot initiative in the name of gay rights, that they were enforcing not the Constitution but rather "the views and values of the lawyer class from which the Court's members are drawn."

This article appears in the May 24, 2008 edition of National Journal Magazine.

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