In the separation of powers under US federalism, the states have
rights through their own electoral process to determine how they will
be governed. In California, activist judges overturned the will of the
people in their ruling yesterday about same-sex marriage. While the
celebrating is still going on in the gay community, people who
successfully established laws before that define marriage in its
traditional form are working to re-establish them.
The last time the state’s voters were asked to express
their views on same-sex marriage at the ballot box was in 2000, the
year after the Legislature enacted the first of a series of laws
awarding spousal rights to domestic partners.
Proposition 22, which strengthened the state’s 1978 one-man,
one-woman marriage law with the words “Only marriage between a man and
a woman is valid or recognized in California,” passed with 61 percent
of the vote.
The Supreme Court’s ruling Thursday struck down both statutes.
“The remedy is a constitutional amendment,” said Glen
Lavy, senior counsel for the Alliance Defense Fund, which is pushing
for the stay.
Getting the Supreme Court to postpone putting its decision on gay
marriage into effect until the November election is the course
correction available to those whose past votes were overturned by these
“(The ruling) is not the way a democracy is supposed to
handle these sorts of heartfelt, divisive issues,” said Brian Brown of
the National Organization for Marriage, one of the groups helping to
underwrite the gay marriage ban campaign. “I do think it will activate
and energize Californians. I’m more confident than ever that we will be
able to pass this amendment come November.”
This will become one more big issue in the elections.
Thursday’s ruling could alter the dynamics of the
presidential race, as well as state and congressional contests in
California and beyond, by causing a backlash among conservatives and
drawing them to the polls in large numbers.
At NRO Bench Memos, Gerard Bradley parses more carefully (and legally) the political possibilities.
[New York Times] Reporter Adam Nagourney says that all
three candidates — McCain,Obama, Clinton — “are pretty much in
agreement”. “All oppose” what he calls “gay marriage”, and all say
“that same-sex couples should generally be entitled to the legal
protections afforded married couples”. And all three think it is a
matter for the states to decide.
What’s wrong with this? For openers, Nagourney declines to notice
the huge pink elephant in the room: the federal judiciary. Anyone who
has read the Lawrence decision — and maybe anyone who has heard of it —
can tell you that the Supreme Court is on the cusp of holding that
constitutional norms of equality and liberty require legal recognition
of same-sex “marriage.” The next president almost certainly will make
an appointment to the Court, and thus have the chance to nudge the
Court — one way or the other — off the cusp. If that president is named
Obama or Clinton, there is an astronomically greater chance that by
2013 the Supreme Court will impose “gay marriage” nationwide. That’s
already a fateful “disagreement” among the Big Three. And, so much for
“agreement” that the matter be left to the states.