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Why the California Court's Decision Is Good for Gay Marriage
The California Supreme Court ruled today that Proposition 8, limiting marriage in California to "opposite-sex couples," is a valid amendment to the California State Constitution. While some commentators criticize the California Court's decision, Strauss v. Horton is actually good for gay marriage in the long term.
The Court's decision drives home that the future of gay rights lies at the ballot box and not in the courts. We should view the California Court not as opposing gay marriage, but rather as promoting public deliberation and democratic action on the subject of equal rights.
As a technical matter, the central issue in Strauss was whether the sentence "Only marriage between a man and a woman is valid or recognized in California" was a constitutional amendment or a constitutional revision. In practice, the political question presented by Strauss was whether the California Supreme Court would strike down a popularly enacted constitutional change and restore its earlier judicial decision supporting same-sex marriage.
By upholding Proposition 8, the California Court effectively tossed the ball back to the voters of the Golden State. The Court thereby ensured the long-term outcome of gay marriage: Given the strong support of younger voters, gay marriage will be approved in California by ballot initiative, perhaps quite soon. Moreover, when gay marriage is approved by popular vote, conservatives will not be able to blame a "judicial activist" court for their loss.
Gay marriage will stand on sounder footing when it is popularly enacted rather than judicially imposed. One can imagine the wedge issue Strauss could have handed the Republican Party had the Court overturned the decision of the California electorate. Instead, opponents of same sex marriage must fight it out again at the ballot box.
Supporters of gay marriage should recognize that we are reaching the limits of judicial leadership on this issue. While Brown v. Board enunciated important values, real change came through the politically enacted Civil Rights Act of 1964. Similarly, repeal of discriminatory measures like the Defense of Marriage Act will take legislative action. Don't Ask Don't Tell must also be retired by political, rather than judicial, means.
The popular adoption of gay marriage is on the rise. Gay marriage has been adopted by legislative action in Vermont and Maine. New Hampshire's same sex marriage bill has passed the state legislature, and Governor Paterson's bill has cleared the New York Assembly. There is already a plan to put a pro-gay marriage amendment on the California ballot in 2010.
With solid Democratic majorities in both houses of Congress and a Democratic President, now is the time to begin enacting a progressive political agenda through the ballot box. We must recognize that we are reaching the limits of judicial leadership, and that We the People must now take charge. The Court's decision in Strauss is a clarion call for political action.
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Justice Zelinsky, which equal protection test do you think applies, rational basis or strict scrutiny? Why?
well if we left loving v virginia up to the voters interracial marriage might still be illegal too. Its not about the wisdom of the majority its about common sense equality. and sometimes its only with legalization that people can learn to accept it against these deeply ingrained biases.
I meant 'against' federal coopting, of course.
Exactly!! The United States was tracking in the same direction as Western Europe on the abortion/choice issue until Roe V. Wade was issued. That ruling created the anti-abortion movement overnight and inspired the culturally religious to organize and enter politics full-on for the first time in American history. It also allied many civil libertarians with the rightists not because they were against abortion, but because they were for democracy and federal coopting - without a Constitutional Amendment - of an authority that had clearly been the province of the State.
This ruling on Prop 8 reinforces the province of the State of California over the feds - an authority that in 9 of 10 cases that gay activists would prefer to maintain. Don't toss that strategic advantage for one immediate gain.
God Bless Ted Olson and David Boies.
I'm gay and completely agree. We only need to get 2 1/2 percent more of the population of Cailfornia to vote favorably for gay marraige and then the issue can be put to rest. I realize that people are tired of waiting, but when we're so close to having gay marriage legitamized through the Democratic process it seems a shame to me to keep crying foul and trying to change things judicially. We had twice as much money to advertise our side of the cause during last years election cycle, and frankly, the other side simply did a better job of getting their side across. That's on us. So get out there and change people's minds on an individual basis, let everyday people see that we are just everyday people too. That's what will make long standing change and something the voters, and the majority of us Californians, will stand behind.
follow harvey milk's example and it can win!
While I agree that letting things go to majority vote with a younger and more accepting group in the future may bode well for gay marriage, I still feel that it is always dangerous for the majority to vote on the rights of the minority by popular vote. People are often uneducated on these issues and vote based on bias and misinformation since they may not see the importance of making sure that everyone is treated fairly and equally. As long as it doesn't curtail their rights, they have no stake in protecting or granting the rights of others. Just imagine if the issue of slavery was put to a popular vote? In most cases, activism and judicial intervention precede changes in the mindset of the general populous that would be voting on the issue and prop H8 showed that. The law of the land is marriage, the issue here is equal protection under the law. Laws can be made by the people but its up to the courts to make sure that they're fair. I'm confident that same-sex marriage is going to happen in the near future, and it would be nice to have it democratically decided because of the social implications, but you can't deny the responsibility of the courts to make sure that we are all equally protected under the law.
Back in 1967 there was a married couple named Loving. Their marriage was *illegal* in sixteen (16) states, and the majority of Americans polled *opposed* their marriage many on the grounds of a heartfelt belief that the *Bible* condemned such unions.
Fed up with being harassed by police for no other crime than being a marriage comprised of a white man and a black woman, Richard Loving took his case to the Supreme Court.
That was 1967, and the Supreme Court ruled that those laws prohibiting inter-racial marriage were unconstitutional. The justices did so in direct defiance of popular opinion, and solely on the basis of the cold, hard facts of the case, and the content of our Constitution, and simple human decency.
Prior to Loving vs. Virginia, the woman I am now married to, the wonderful, elegant, amazing, talented *soulmate* that God has blessed me with, well, if it were 1967 our marriage would be *illegal* in sixteen states and the *majority* of Americans would think our marriage *wrong,* and many would no doubt assert that "the Bible says so!"
Being gay is an *orientation,* not a "lifestyle choice," and any first semester Psychology or Human Biology student knows this to be a scientific fact.
To continue to discriminate against the fundamental human right of consenting adults to marry while denying the actual facts of the matter is the height of intellectual dishonesty in the service of a morally bankrupt authoritarian political agenda.
Leland R. Erickson
Citizen
Civil rights should not be decided by majority vote.
Same sex marriage is not a right as ruled by Federal Courts.
WRONG!!! There's NEVER been a same sex marriage case ruled on by the federal courts!! The ONLY thing that's been said on the subject of marriage that applies is the Loving v. Virginia ruling, which stated:
"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival..."
What will happen when two California gay divorcees try to remarry? Will their former right to marry carry over? How about if is stipulated in the divorce decree as property to be divided? What if one partner had the right to marry and the other never did? What if a gay divorcee tries that "opposite marriage" thing? What if someday California gets its collective head out of their giant ass?
I liked very much your comment on letting the people decide at the ballot box as opposed to a court ruling. This should apply to all laws.
I am surprised that no one in any of the articles has commented that gay marriages (those legally married will stand)
That is the ace in the hole and no seems to realize it. People were saying gay marriage denied them equality. Well, the court just made some more equal than others. While I prefer the ballot box. This seems like an open and shut case for the next Johnny Cochran
Of course proponents of marriage equality will not give up. However, this does not negate the fact that the California Supreme Court's decision was utterly cowardly and based on politics, not the law. The indisputable fact is that Proposition 8 violates the state's equal protection clause by creating two separate classes of citizens for the express purpose--in fact, for the sole purpose--of discriminating against one.
How sad that California's judicial system is so frightened of Utah's religious system.
Why is it that other minorities were able to gain equal rights through court decisions (Brown v. Board of Ed., etc.), and some argue that LGBT people should have to wait -- another 10 years? another 20? -- for our rights to finally be accorded to us by voter referendum at the ballot box?
No really, why? Why should we be treated differently from other minorities? If popular vote had determined whether the US would still have slavery, segregation, Jim Crow, etc., we'd be living in a very different society today. Does anyone want to argue that the court decisions instrumental in changing those conditions were unjust?
The tyranny of the majority should never be allowed to deny basic civil rights to minorities. The purpose of our constitution is to provide for majority rule while protecting minority rights. Why else have a judicial system? Why have a balance of powers at all? The courts' purpose is to interpret the constitution. My interpretation of equal justice under law is just that -- equal justice for all. That means I should have the same rights, responsibilities, and protections everyone else has. As long as we do not, we live in a hypocritical society that only provides justice to some rather than all.
Look, I want to get married. My family's rights should not have to wait.
Bingo! Civil rights issues are originally decided by court decisions, because courts tend to recognize justice earlier than the general population.
You are absolutely right.
You either didn't read the article or you have very little understanding of the situation Mr. Zelinsky is commenting on... and also didn't pay attention to the article.
Equal rights were afforded to African Americans as a minority in the US Supreme Court decision Brown vs. Board of Ed. based on the court's interpretation of the United States Constitution.
Proposition 8 sought to ammend the state constitution of California. There is a big difference between the state and US constitutions, and it is the job of the California Supreme Court (CSC) to interpret only the state's constitution.
While banning gay marriage is unconstitutional, as US citizens are afforded equal protection and rights under the US constitution, the CSC has only done its job in interpreting the constitution of California, as Mr. Zelinsky has pointed out. Their ruling is basically a reaffirming of the notion that all of the power to change the state's constitution is vested in California's people, and also confirmation that the CSC supports upholding the law, rather than the ideals which the law should be (but isn't) based upon. Respect for the rule of law is a very important.
My only criticism would be that the title is misleading and should be "Why the California Court's Decision Is Not Bad for Gay Marriage" as banning something can never really be considered "good" for it.
Thankfully, the narrow margin for the Prop.8 vote indicates it may soon be repealed.
The human ossification who wrote this article would have explained away the Dred Scott decison. Mr. Ivory Tower, let me ask you a question. Do you think we should have let Billy Bob and Betty Sue vote on weather African American's could ride on the front of the bus, attend white universities or even vote, pre-1965 Alabama? Yeah, that would have worked out well. How come you don't apply this same litmus test to prop. 8? Where did you get that degree? Back of a matchbook?
You have got to be kidding me. The majority should NEVER be able to decide which of us gets to enjoy "equal" rights. That's an oxymoron.
I'll never understand why propositions regarding equal rights are legal in the first place.
Then who should decide what is and what is not a marriage?
Or should any relationship be a marriage?
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