The WSJ's headline for letters responding to this editorial seems to get the issue better than the letters: Court Allows Gay Marriage: Tyranny or Its End?. Now, the editorial...
Gay Marriage Returns
May 16, 2008; Page A12
Just when the news was filling with stories about a Republican Party gasping for air, along comes the California Supreme Court's 4-3 decision yesterday legislating gay marriage. The GOP certainly hasn't done anything to deserve such luck.
Recall how in November 2003 the Massachusetts Supreme Court, also by a 4-3 vote, issued a similar gay marriage pronouncement. It dogged Democrat John Kerry all the way to Election Day. The issue got so hot that the liberal fever swamps came to believe that Karl Rove had invented this greatest of all "wedge" issues.
Nope. Judges invent wedge issues. Always have. As with California's Supreme Court, many of the berobed judiciary take it as their solemn duty to do the people's thinking for them on the modern world's most difficult and divisive social issues. So it was with Roe v. Wade, when the U.S. Supreme Court declared 50 state legislatures irrelevant. The aftermath has been more than 30 years of the abortion wars.
California's Supreme Court is not the law of the land, but its 4-3 ruling, titled "In re Marriage Cases" for six consolidated appeals, explicitly told both the state's voters and its elected legislature to get lost. Back in 2000, California voters by 61% approved a proposition asserting that the state could only recognize a "marriage" between man and woman.
Now comes the court. In the court's words: "[T]he core set of basic substantive [court's emphasis] legal rights and attributes traditionally associated with marriage . . . are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process." This rule by judicial decree could hardly be clearer. What is also clear is that judges should again be an election issue.
The school of thought which holds that the American people should cheerfully accede to whatever social world unelected judges design for them is Democratic orthodoxy. We hope John McCain's debate coaches will drill him on the limitless verbal vagaries Barack Obama will drape around the subject of activist judges and in particular this California decision. Senator Obama for his part supports civil unions but opposes gay marriage. The question is whether he thinks the people of California are entitled to the same opinion.
While the popular spin on these gay-marriage rulings holds that this is an all-or-nothing war between Democrats and Republicans, nothing could be further from the truth. Absent an occasional burst of judicial fiat such as this, the American people have been conducting an admirable exercise in democratic discovery about gay marriage.
While 27 states have passed constitutional amendments banning gay marriage, reflecting what opinion polls show to be overwhelming public sentiment, most Americans do not want the U.S. Constitution amended to prohibit same-sex marriage. Back in 2004, some 52% of Bush voters favored a union stopping short of a "marriage" designation. This was also Mr. Bush's position.
In other words, the American people, rather than simply shunning the desire of gays to form permanent unions, are clearly willing to take up the matter and work it through their legislatures. California's legislature has passed bills twice to authorize gay marriage; both were vetoed by Governor Arnold Schwarzenegger. If California can find a Governor willing to sign off, so be it. It is preposterous, though, to let four judges decide this for a state of more than 36 million diverse individuals.
Most of all, the gay community wants social acceptance. It should look to what flowed from Roe v. Wade: unending bitterness. A wiser course in 21st-century America is to trust the democratic process.
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