Saturday, November 15, 2008

Gay Marriage and Activist Judges

There are many arguments for and against gay marriage. I have not heard compelling arguments either way, and I am not sure where I come down. However, given the approach supporters have used, count me among the opposition. The method being used by the pro gay marriage camp should be universally condemned, and because of it there is no resolution in sight.

Marriage is a legal construct. For over two hundred years, local, state and federal legislatures have passed thousands of laws granting married couples certain rights, privileges and responsibilities. In every case marriage was either explicitly defined as a union between a man and a women, or it was assumed that everyone understood it that way. There are absolutely no exceptions-not one.

Today we have groups that would like to be included under the umbrella of those laws (one comic agreed they should on the basis that gays deserve to be just as miserable as the rest of us). There is a process by which this might be done. They have the right to petition our law making bodies, federal state and local legislatures. In the event they garner adequate support, and those bodies agree (through the votes of the elected representatives), their hopes will be realized.

Instead the supporters have elected to try to change the law in the courts. They have been successful in getting some unelected judges to rule in their favor by redefining the word marriage to include them. There are plenty of arguments in favor of gay marriage, but defining marriage as anything other than a union between a man and a woman is not one of them.

The entire debate upsets conservatives, not just because many believe on religious grounds and others that it is wrong, but because it is another example of activist courts usurping the power and role of the legislature. Those courts supporting gay marriage have rewritten the laws, and the intent of the lawmakers, under the dubious claim that the current gender requirement is unconstitutional. In reality the "rights" the courts invented in order to justify their action is the only thing unconstitutional. As a democracy, our lawmaking must remain the exclusive domain of our elected representatives. Judges are charged with adjudicating the law, fairly interpreting it, but not undermining lawmakers authority by applying their social philosophy under the banner of dubious/invented constitutional claims.

As a result of all this we have proposition 8 in California (and similar ballot measures in other states), amending the state constitutions and banning gay marriage. These measures are partly due to these activist judges, but also to a federal law requiring all states to recognize all marriages in other states. The federal Defense of Marriage Act tried to remedy this (and protect against activist judges), but various local judges intervened and ruled it was unconstitutional. For them the game is to rule anything they don't like as unconstitutional. The only response available to the opposition is to try to amend the constitution.

The practical effect of the advocates course is to confuse the issue and prolong the debate. If a conventional approach to the legislature had been used, the country would be much closer to a solution. Think of Roe vs Wade. The Supreme Court used tortured logic and convoluted reasoning (logic and reasoning loosely defined here) to arrive at some sort of quasi right to abortion. They took an implied right, not written into the constitution (the right to privacy), as the basis for a new right (sort of an implied right mothering a new right), that being a woman's right to (their euphemism) choose. Had the court properly ruled what is obvious, that abortion is not the purview of the federal government, it would be legal in at least 48 states, and I believe one way or another legally available to everyone. At the time of Roe three quarters of the states had already legalized abortion, and laws legalizing it were in the legislatures of all but a few of those remaining. My point is that this judicial activism didn't accelerate a solution, it delayed one. But worse, because of its extra legal birth, Roe gained no acceptance by the opposition. The country is still torn apart. Had the matter been returned to the states as it should have, there would still be groups trying to change whatever policy they adopted, and with great passion, but it would be without much of the animus and anger existing now.

If those advocating gay marriage proceeded in a conventional way, prevailing legally in even a few state legislatures, the federal government would have to deal with the difficulty created by the law requiring recognition by other states. Every state they won over would create more pressure for recognition by all the states. I can't say for sure what would result, but I know that whatever got done would be fairer and more acceptable to everyone than anything coming out of judicial activism.

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