"When is it that a court should act? When is it that a court is shirking its responsibility by not acting, and when is a court overreaching? That’s a real conundrum."
— California Supreme Court Chief Justice Ronald George, during an interview last weekend with the Los Angeles Times.
On March 7, 2000, 4,618,673 Californians voted for Proposition 22, the Golden State’s Defense of Marriage Act, which comprised these fourteen words: “Only marriage between a man and a woman is valid or recognized in California.”
A week ago, four lawyers decided that those millions of Californians have no right to define marriage the way the institution has been defined by billions of people for thousands of years, in custom and in law. The court ordered state officials to begin performing homosexual marriages in 30 days.
The court’s discovery of a hitherto unknown constitutional right for men to wed other men was just the latest example of the judicial over-reach that continues to stoke the culture war and undermine our court system. It also punctuates anew what’s at stake in this election year.
Of course, it has become commonplace for judges wielding raw political power to redefine our most basic values. That is how the Left succeeds. Since it cannot achieve its goals through the democratic process via the elected legislatures (California’s DOMA passed with 61 percent of the vote), it shrugs off the people and goes to the courts, where it relies on political activists cloaked in black who answer to no one.
Few in the media saw fit to try and justify the court’s ruling on legal grounds. Most preferred instead to focus on the thousands of jubilant couples already lining up at city halls across the state. (One couple implausibly insisted to a reporter that the decision marked “the happiest and most romantic day of our lives.”)
But even those media organs that support gay nuptials and took on the substance of the court’s argument had to concede that the decision was pure folly. The Washington Post called the decision “flawed” and “unnecessary.” The Chicago Tribune scolded the court for being “unsound in its reasoning…”
The decision is “unsound” because, as the Tribune said, “…the soundest basis for a new right is the democratic process, not judicial decree.” The court’s dissenting opinion bluntly denounced the majority’s ruling as a “profound error” that violates the separation of powers. Justice Marvin Baxter wrote in his dissenting opinion that the court “does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice… 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."
Justice Carol A. Corrigan wrote that while her personal sympathies lie with the plaintiffs challenging the bans on same-sex marriage, the courts ought to allow the political process to address the question. “If there is to be a new understanding of the meaning of marriage in California,” Justice Corrigan wrote in her dissenting opinion, “it should develop among the people of our state and find its expression at the ballot box.”
Barack Obama disagrees. He has pledged to strike down the 1996 federal Defense of Marriage Act, a law he once called “abhorrent.” But DOMA, which strengthened the right of states to preserve the traditional meaning of marriage, passed with overwhelming support in Congress and was signed into law by President Clinton. In a statement, Obama made clear that he supports the court’s four judge majority over the millions of Californians who wish that marriage remain the union of one man and one woman.
Polls say four in five Americans believe the country is headed in the wrong direction. But it is not just soaring gas prices and the sagging housing market that are weighing on people’s minds. Surveys real that the moral health of our nation is also a top concern. And this year’s presidential election offers starkly difference choices in this regard.
In contrast to Obama, John McCain’s presidential campaign released a statement declaring that “John McCain supports the right of the people of California to recognize marriage as a unique institution sanctioning the union between a man and a woman, just as he did in his home state of Arizona. John McCain doesn’t believe judges should be making these decisions.”
For those pro-marriage conservatives who are still unsure whether they will support John McCain on Election Day, you can be sure of this: If a President Obama, instead of John McCain, appoints the next two or three justices to the Supreme Court, I guarantee you that by the end of his presidency, we will have same-sex “marriage” imposed on all fifty states as the law of the land.
For now, the people of California have recourse against the robed radicals sitting on their Supreme Court. Anticipating the court’s over-reach, traditional marriage groups collected nearly twice the necessary number of signatures to place on the November ballot a referendum to create a constitutional amendment protecting traditional marriage in California.
It is my hope that the amendment will pass, because where the California Supreme Court’s Chief Justice perceives “a real conundrum,” a majority of Californians discern only a court full of over-reaching lawyers and thus its own “responsibility to act.”