On the left coast, the will of the people (and their elected representatives) is really irrelevant – unless, of course it is consistent with the will of the almighty judiciary.
California’s Supreme Court has today decreed that same sex couples must be granted marriage licenses by the state. See: LA Times Story
But then again, the courts – before which legislatures, executives and the people must bow – have also legalized gay marriage in Massachusetts & civil unions in Hawaii & Vermont (legislatures have recognized same sex relationships elsewhere).
The CA Supremes’ ruling comes after 61% of the states voters approved Proposition 22 (2000) which stated that only marriage between one man and one woman would be recognized by the state.
So, maybe it’s about time legislators started impeaching justices who see themselves as above the law rather than under it.
In a great display of courage, Governor Arnold Schwarzenegger (who had vetoed legislative attempts to legalize gay marriage), said that he would not support a California Constitutional Amendment to affirm marriage as between one man and one woman.
Folks, it’s only a matter of time before this momentous issue comes to the US Supreme Court. No matter what you think of John McCain personally or of his record in the Senate, he will appoint justices who see their role as interpreting the Constitution — not adding to it. Obama and Hillary would appoint justices who would decimate our founding documents.
And, for those who think that government should get out of the marriage business entirely, I understand your argument. I even sympathize with it (despite the host of impractical implications it entails). But until government DOES get out of the marriage business, I continue to support one man – one woman marriage as the best policy for our society.
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14th Amendment to the Constitution: Equal Protection
“no state shall… deny to any person within its jurisdiction the equal protection of the laws.”
You may not agree with it, you may dislike it, but a strict constructionist view of the 14th Amendment can lead to no other result.
Thus, the real question is, do you – and those who share your perspective – truly want judges and justices who strictly interpret the constitution, or do you want activists who will make it say whatever you want it to say?
I for one, simply don’t see why the state should be involved in deciding who can and can’t marry.
As JR wrote today elsewhere, (I’m paraphrasing), keep the government out of our lives, they’ll F it up.
This is what happens when our country turns from being a free society to a democracy. We end up with garbage like this. There always has to be a minority in a majority rule.
Didn’t the founders forbid marriage?
I mean we’re supposed to have the right to life, liberty and the pursuit of happiness, aren’t we?
Gunter – are you saying that a free society/ democracy should not let people be? But that they need government to tell them who to love?
Ragnar – The reason we have judges is that somebody has to determine the original intent of the people who wrote and passed our laws. Consider when the 14th Amendment was written and passed. Ratification was completed on July 9, 1868.
The very idea that those people would have taken same-sex marriage seriously is absurd. If you had proposed the idea to them, they would have thrown you in a mental institution — if you were lucky.
CT – This is the difference between “original intent” and strict constructionism, OI believes that we have to try to figure out what the Founders/ authors intended – which is ALWAYS subjective. We take our views and place them, as you have done, in the mind of the authors of the 14th Amendment. Consequently, OI is a terrible idea. Every American has a different idea of what must have been in the minds of the authors.
Just consider the mind-sets of most Americans in 1868. They really weren’t into the whole idea of Equal protection then either – only it was racial, or gender bias. We need to take the words they wrote, and the highest possible meaning of those words – to outlaw separate but equal, etc. It took those folks a while to accept the idea of equal treatment, I imagine it will take this a generation or two too.
Equal treatment under the law has to mean something more than a subjective determination.
Ragner,
given that interpretation of the 14th amendment, I see no limits on the expansion of marriage between any combination of consenting adults, do you?
Let’s see:
“no state shall… deny to any person within its jurisdiction the equal protection of the laws.”
+
any adult person who wants to get married should be able to marry any adult person who wants to marry them.
=
polyamory EVERYWHERE (by judicial decree)
could have some downright astounding tax benefits for communal marriage, eh?
And thus lives on the legacy of John Marshall. For those who prefer legislative supremacy, I hear New Zealand has lots of room for growth.
I think its actually kind of funny, when people talk about original intent and “Will of the Founders”, as if they were some form of unfied, collective intent. No matter what your position on any issue, you can likely find a “Founder” who shared it, especially if your slack enough in the interpretation.
Ragnar, you understood my post exactly opposite of what my intended meaning was to be. I’m saying that in a free society the government has nothing to do with marriage. Why would we as conservatives want to let the government regulate our religious institutions? This is why I say we are in a democracy, and not in a free society. We are ruled by political law, instead of a natural law. There is no truth in our law anymore. We do not strive to protect the rights of people, but to enforce the political laws created on the whims of the people crying out to our elected officials that they need to solve their problems. The government has once again overstepped its bounds and infringed upon people’s God given rights. Next up, it’s the Federal government’s turn to legislate upon the religious institution of marriage.
This is the garbage that happens in a democratic society. This would never happen if we were free.
Ragnar – Over time the definition of words evolve. Over time societies evolve. Over time everything changes. What judicial activism is about is adding to the confusion and hastening the evolution towards a self-serving goal. Judicial activists seek to evolve us to suit and serve their own ends.
We cannot determine original intent or do anything to perfection. But that is not the point of our legal system. The point of our legal system is to ensure that we treat each other honorably, that we respect each other’s rights. We have procedures for creating and amending our laws. These procedures do not include legislation from the bench.
Ostensibly, judges have only a small part in the process of building our legal structure. Judges do not build our legal structure; they review the blueprints of the structure, and they maintain the existing structure. Judges, when necessary, only fill in cracks and holes. That is the meaning of judicial restraint.
Very well said, Stephen G! I would only add that gay marriage likely would not even be an issue were it not for the government’s involvement in the religious covenant of marriage (tax breaks, health care, inheritance issues for example)in the first place. Government has created the perception and sometimes the reality that married couples are treated better under the law.
Government screws up everything.
C Tom – you couldn’t be more incorrect. We are a common law system, ergo the judges DO make law. That’s what common law means – the former opinions of superior courts impact the future rulings of lower courts. If we were a civil law system, like France and much of the world, then yes, the judges would only be responsible for carrying out the will of the legislature. I for one am happy to live in a nation with THREE EQUAL (at least before Bush) branches of government.
Gunter – looks like we are on the same page. I, like you, just don’t understand why the government should be involved. Let us pray that our society never goes sufficiently crazy for the government to think that they can intrude on religious life…
Ragnar, I have heard the common law argument before. What this argument ignores is that judges do in fact have limits on their authority. Those advocating judicial activism (so long as it serves their interests) pose the common law argument without bothering to define any limits on judicial authority. Instead, what they do is advocate such a loose interpretation of the Constitution that no one can anticipate what decision a judge might make — except based upon WHO that judge might be and what HE or SHE believes. Justice based upon the personal bias of the judge is not justice.
If we are to be ruled by Laws and not by men, then the law must itself have meaning. Laws rightly should give expression to the people who created them and the traditions they established. Laws must not be the play things of men and women in black robes.