Overreaching On Gay Marriage Issue

"homosexuals have always and in every state enjoyed the same rights as heterosexuals to marry someone of the opposite sex. Understandably, they likely won’t want to, or would have trouble finding a partner, and the marriages might well fail if they did. But the only way it can be argued they are being treated unequally is to redefine marriage and make it mean something it has never, ever meant." (JAY AMBROSE, 5/29/08-The Times Herald)

Posted on Thu, May 29, 2008
By JAY AMBROSE, Commentary
The Times Herald

The California Supreme Court’s ruling on gay marriage is yet another instance of judges deciding that they are bound not by the rule of law in reaching their decisions, but by their own moral whim, and this is clearly, even profoundly antithetical to much that is most precious in the American tradition.

There wouldn’t be a problem if the normal legislative or referendum processes had been followed in doing what the court did — confer a special status on same-sex unions by calling them “marriage.” The legislature had already written a law permitting domestic partnerships and giving them the state-level benefits and duties of unions between men and women. But a public referendum in 2000 made clear that there were to be no gay “marriages.” The court disagreed.

The court believed that the word “marriage” was crucial because, otherwise, gays could not feel themselves in “a family relationship unreservedly sanctioned by the community.” A majority of the judges therefore assumed a combination of the legislative and judicial function — you might call it the tyrannical, dictatorial function — and declared that the verbal distinction would be obliterated.

The court had a legal rationale for the action — namely, that there must be equality under the law — but this is nonsense because marriage has always and everywhere referred to an arrangement between the two sexes, and for an obvious reason. Many if not all such intimate, long-lasting male-female relationships will eventuate in children, and for the sake or reasonably stable families, the society has a major stake in insisting on certain responsibilities along with certain protective rights.
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Strictly speaking, homosexuals have always and in every state enjoyed the same rights as heterosexuals to marry someone of the opposite sex. Understandably, they likely won’t want to, or would have trouble finding a partner, and the marriages might well fail if they did. But the only way it can be argued they are being treated unequally is to redefine marriage and make it mean something it has never, ever meant.

There were gubernatorial vetoes of the California legislature’s efforts to confer the word “marriage” on the same-sex unions it had made legally possible, but, in seeking such laws, legislators were acting within their democratically conferred jurisdiction, and minus the vetoes, would have given meaning to the sense of community sanction because they would also been acting as elected representatives of the people. Obviously, in its arrogant overreaching, the California court was doing no such thing.

Rather, the court assumed an activist role that left the people out and was nothing less than an abuse of power. The purpose of courts is to interpret law, and sometimes to see whether laws are constitutional, not to invent new law. It is not activist in the bad sense when a court overrules legislative purposes in accordance with a conscientious reading of constitutional provisions, but that is not what the California court did.

Some contend courts have made social progress possible in America through extra-constitutional decisions, but some of those cases at the federal level were not extra-constitutional (ending segregated schools was constitutionally correct), some of the cited decisions did not represent progress, and some of those decisions could and would have been legislatively enacted. That might still leave some legally baseless decisions that were in some respects beneficial, but overstepping the bounds breeds disrespect for the courts and law and subjects Americans to rule by a black-robed oligarchy.

Because California has no residency requirement for same-sex marriage, and because there are constitutional questions about the validity of states refusing to recognize gay marriages in other states, the court’s ruling could have nationwide consequences. The people of California may have the last word, however.

There are efforts to put a statewide referendum on the ballot in November banning gay marriage in the state constitution, not just by law, as was done the last time. The court could not so easily trash a popularly determined constitutional provision.

Jay Ambrose, formerly Washington director of editorial policy for Scripps Howard newspapers and the editor of dailies in El Paso, Texas, and Denver, is a columnist living in Colorado. He can be reached at SpeaktoJay@aol.com.