The media is all abuzz about a recent decision by the California Supreme court to overturn a voter approved ban on gay marriages. Gov. Arnold Schwarzenegger says he will uphold this ruling.To be honest, I have mixed feelings about this.
On one hand, I have stated my support for gay marriage here and here. I think it's great that gay couples in committed monogamous relationships may soon be granted the same legal rights as their heterosexual counterparts in California. Perhaps this will serve as a catalyst in other states.
But, on the other hand, I have serious reservations about a court overturning the will of the people - even though I don't agree with their collective will. It makes a mockery of our political system. What's the point of getting involved and voting when activist judges are going to do whatever they want and force their will upon the masses?
Does the end justify the means?
Supporters of this ruling will point out that the court is simply overruling the ban because it is unconstitutional - but isn't that a matter of interpretation? When the people of California voted the ban in, weren't they saying that is how they choose to interpret their state constitution? It was a narrow victory - 3 of the 7 judges sided with the people. That tells me that how their constitution should be interpreted is not as obvious as some would have us believe.
It's easy to ignore such things when you agree with the ruling. But, if we grant that much power to the courts, it's only a matter of time before they make a ruling we don't agree with - what then? If we agree that we are a democracy then we have to accept the will of the people - always - not just when it's convenient.
I can't help but wonder what sort of ramifications might arise when you force people to accept something against their will. Wouldn't it be better to change the heart and mind of the people? Sure, it will take longer, but are we so inpatient we can't wait a few more years? Actions like this may cause other states to dig in even deeper and push that eventual day further into the future. Might this end up being a hollow victory as we win the battle but lose the war?
10 comments:
I'm sure a ban on inter-racial marriage could have won referenda in any number of states in the south 35 or 40 years ago.
The will of the people can't trump the rights of individuals.
True, and there have been laws passed in years gone by that seem ridiculous to us now and are either ignored or have been overturned.
Who gets to decide on what those individual rights are? We'll always have to deal with human frailties and mistakes will be made; but, it seems to me that a group of a million people collectively are less likely to make mistakes than a group of 7 people. With such a small sampling then personal prejudices have a much greater impact on the outcome.
But, on the other hand, I have serious reservations about a court overturning the will of the people - even though I don't agree with their collective will. It makes a mockery of our political system. What's the point of getting involved and voting when activist judges are going to do whatever they want and force their will upon the masses?
Courts don't replace voters. In this case, their role was to scrutinize the proposition passed by Californians through the lens of the California State Constitution to see if it matched the guidelines and limits of that document.
In this case, they decided it violated, in some aspects, the letter of the law as dictated in the state constitution.
I've heard people flinging the term "judicial activists" around, but six of the seven justices were appointed by Republican administrations in California. If the proposition had been upheld, I'm sure these same Republican appointees would be "enlightened jurists" to those same people.
I'm glad we have these checks and balances in our republic. A true democracy could be detrimental to the rights of the individual, since popular culture rarely reflects what is right for each of the millions of citizens of the U.S.A.
Superstar, you bring up a good point about the need for checks and balances. But, given that it was such a narrow victory (4-3 vote), it could have just as easily swung the other way. To have such a narrow victory in a blue state doesn't provide much hope for those of us who live in red states.
btw, I'm not calling them "enlightened" - even though I agree with the outcome. I'm just not so sure I agree with the means for achieving that outcome.
Oh, and welcome to the queerosphere - when are you going to write in your blog? Tell us more about yourself.
abelard enigma - i completely agree with your post. nut-job activist judges in california are making a mockery out of democracy. although i'm not opposed to same sex marriages myself, i believe the will of the people in respective states needs to be honored. sad day for democracy, happy day for gays :)
With out "judicial activism" and loose interpretations of the commerce clause, we'd still have segregated schools, restaurants, and busses. I'm grateful for a section of government that can protect the minorities from majorities who want to over-ride their rights. The legislature and the executive branches of gov't can still overturn the judge's ruling, but the Governator says he won't, and it's up to the people in November to decide.
What I find most interesting as a counter to the "judicial activism/the people should decide" argument is the fact that the CA state legislature voted on two separate occasions to allow gay marriage. That's the way a democracy is supposed to work--people vote for legislators who then legislate. So often, courts don't rule on issues because they find that the given issue should be left to the legislature (one of the dissenting opinions said this in the In Re Marriages case). This made it really interesting to hear Schwarzenegger say, when he vetoed the gay marriage bills passed by the legislature, that he wanted to wait for the court to rule on the issue. I am usually not one for judicial activism, but in this case, when the governor has decided to change the order of things, it seems like it was a necessary evil.
In any case, the proposed amendment should answer things once and for all, and I think the decision is a good catalyst that will cause the people to take a stance and make a choice. Before this ruling, gay marriage was often shrugged aside as being unimportant. I think that now that there is a real possibility of gay people getting married, the debates are going to increase, and people are going to take a stance and head to the polls in November. In that respect, I think we'll end up with an even more "democratic" result. In any case, it will be interesting to see what happens.
That's the way a democracy is supposed to work--people vote for legislators who then legislate.
Actually, that's the way a republic is supposed to work :)
It would be different if this weren't a ruling of "unconstitutional". No matter how many people like something, unconstitutional is just that.
And the fact that many people supporting something doesn't make it right. This is the huge flaw in democracy, when the will of the people supports something evil.
You have quite an interesting point. The consequences of this resulting as a court ruling could indeed caught other states to dig deep, especially in the Bible Belt.
As American law is written, though, I think the correct processes happened. Had the Californians wanted it to be banned insomuch that no court ruling could affect it, it should have been written into their constitution. The judges of the California supreme court can only take a situation, read the California constitution, and decide whether or not the law that applies is valid.
There's nothing else for them to look at. They cannot look at how the law was enacted because it is not within their scope. They have only the constitution to work with, and nothing else. And that's how it should be, in my opinion.
I am interested to see the results, though. An amendment is going to be introduced to the California constitution at the end of the year, so I wonder if it will pass. It is good that this ruling occurred in a more liberal state than a conservative one that I grew up in.
From what I've heard, the amendment will be introduced. I'm not sure of the status on that, though. If it fails, it may set a slight precedent. If the ban on gay marriage passes, it will have a larger precedent.
Exciting times, I must say.
Post a Comment