The rule of law and the role of courts in the marriage debate

This is what I wrote to the editor of our law school rag. it was omitted because it was apparently never received...Anyway, that's the "official" story. The editor said she was surprised at the few submissions about the issue after she had requested opinions. Anyway, no conservative voices were heard. The closest thing was an alum claiming that Gavin Newsom was acting contrary to the law and his "Republican mandate" (No, I don't think this guy was joking), but that would hardly make him a conservative. There was a liberal prof and the Pres and VP of the BGLAD (the gay group). Anyway, here are my 2 1/2 cents on the issue.





2/18/04

Dear Editor,



The current debate over opening up the institution of marriage to include homosexual relationships has proffered the larger of question of who decides these important questions in our society. The answer to that question should be obvious: the people, either through our popular vote or via our elected representatives. No court, be it state it or federal, should answer the question for us. That is not their role. Judges should say what the law is, not substitute their own personal values for the will of the people.



Gay activists have pursued their radical agenda of altering the definition of marriage to include homosexual relationships through judicial means. They have analogized their own fight to the civil rights battles of the 50's and 60's. Unfortunately, this argument is deeply flawed and invoking that movement's image for their own agenda is insulting. First of all, the analogy is flawed. African-Americans living under Jim Crow and other discrimination were often denied the right to vote. That was a structural limitation upon the ability of African-Americans to alter their situation democratically. Resorting to the courts was necessary to achieve equal rights. That analogy simply cannot apply to homosexuals. Gays and lesbians have not been shut out of the democratic process. There's no poll tax or literacy test that's used to deny homosexuals their rights to vote. There's no reason why supporters of same-sex marriage cannot lobby their elected officials, testify in the legislature, or buy commercials advocating for their cause.



My larger point is that since homosexuals have not been shut out of the democratic process in this country, there is little reason for courts to change the law. The reason why these activists have gone to the courts to change the law is that legislatures or the people have not been receptive to their agenda on the marriage issue. Certainly, homosexual groups have used the democratic process to pass much of their agenda, including domestic partnership benefits, anti-sodomy laws (nearly all states repealed such laws before Lawrence v. Texas was decided), and other anti-discrimination laws. The democratic processes, however, are being subverted by judicial activist judges in Vermont and now Massachusetts. Obviously, these are two of the most left wing states in the country.



In an abuse of their judicial role, the Massachusetts Supreme Judicial Court has ordered the legislature to alter the legal definition of marriage to include homosexual relationships. The hope, or strategy, is that same sex partners who are granted marriage licenses in Massachusetts will spread out all of the country and try to enforce this legal relationship in other states by invoking the Full Faith and Credit Clause. This process would force other states to adopt the Massachusetts definition of marriage. There is a public policy exception to the Full Faith and Credit requirement, which could be invoked to deny recognition to these couples. The Defense of Marriage Act, passed overwhelmingly by Congress and signed into law by President Clinton in 1996, also provides an out for other states allowing them to ignore Full Faith and Credit in such circumstances. The problem with relying on these mechanisms for denying recognition is that again, it leaves it up to the judges to make the right decisions. Though different jurisdictions will read it differently, it will cause legal chaos all of the country as judges (or other officials), no longer constrained by the rule of law, implement their own value systems for that of the legislature or of the people. All activists need is one sympathetic judge and all hell breaks loose.



The other result for this disregard of the law is the anarchy occurring in San Francisco. Mayor Gavin Newsom decided that he was the supreme arbiter of the law and ordered his marriage clerks to issue same-sex marriage licenses. Though Mr. Newsom took an oath to uphold the law of the state, he decided that California law that defines marriage as a union between one man and one woman was unconstitutional and that he doesn't have to follow it if he doesn't want to. This law, Proposition 22, was passed overwhelmingly in 2000 (61% approval). Such disregard for the will of the people is a violation of Newsom's oath and violates basic democratic principles. Furthermore, similar to the courts in Massachusetts, the Mayor of San Francisco, one of the most left-wing cities in the nation, is not and should not be the ultimate arbiter of these types of disputes. If our elected officials won't follow the law, why should we? Of course, if what Newsom did is ok, then isn't it alright for some other mayor or county commissioner or governor to decide that all abortions are illegal, based on his or her interpretation of the law?



Our system of government only works if the people are governed by their consent. The argument is that same-sex couples have the right to get married. That's a questionable proposition, but it should be debated. This issue is too important to leave it up unelected judges or anarchist mayors. If supporters of same-sex marriage are so sure that they are on the right side of this issue, put it to a vote. Don't take that right away from everyone.