It’s done. Over. The ACLU can take off the gloves and start pouring the champagne; a California judge ruled that a ban on same-sex marriages is unconstitutional. At least we will never have to hear about it again, right? When our Founding Fathers were designing the Constitution, they were most likely not thinking of the rights of two men or two women to marry each other. In fact, some were opposed to creating a Bill of Rights. They did so, however, and to make those rights seem a bit more unalienable and less bestowed, they worded it that “Congress shall make no law…” or “…the right to [insert any modern controversial dilemma] shall not be infringed.” They did this to imply that rights did not originate with the government and that government should serve at the pleasure of those governed.
Then same-sex marriage advocates came along, and the average American said, “Let’s just make some laws against it.” Why do we want to make more laws? Why do we want government intervention in our personal life when we already have it in our business life? In fact, if you are not gay, having legal same-sex marriages would probably not affect you in any palpable way. But no, it is just too much. So gay individuals want to be as miserable as our parents, let them. You would think homophobes would eye this as a perfect way to make homosexuals suffer as much as heterosexuals do.
Is there a fear of mass adoptions by gay couples leading to a baby boomer like generation of homosexuals? If homosexuals are born to heterosexual partners, it seems likely that merely being raised by a same-sex couple will not make someone homosexual. Nicole Bradford of My Two Dads seemed to have a normal appetite for the opposite sex, and she lived with a same-sex couple, albeit heterosexual.
When I think of marriage, I imagine standing in a church in front of the altar, making a vow to God on my fidelity to the woman next to me, not of getting the marriage license at the local courthouse or signing a prenuptial agreement. Why does the church have to share the marriage trademark with the state? The evangelical right blasts the government for intervening in school prayer and yet wants the government to intervene on same-sex marriages.
The most democratic principle is that of unpopularity. We can express and nurture unpopular notions because we understand it is our right. Gay marriage has proven to be an unpopular idea, but of course slavery was once a popular one.
But this is all digression. What many people are not focusing in this particular case is that of participatory democracy. Say what you will of my personal opinion about same-sex marriages, but the judicial system has gone nuts!
Judge Richard Kramer ruled that the ban on same-sex marriages was unconstitutional, and yet the people of California in 2000 voted overwhelmingly for Proposition 22, which limited marriages to opposite-sex couples. In fact, the only counties which had more votes “Against” than “In Favor” were the six counties surrounding the San Francisco area. Constitutional or unconstitutional should matter little if the will of the majority of voting citizens are not in favor of the endeavor.
The level of judicial activism of recent times surpasses that of John Marshall. When the will of one man — not popularly elected but appointed, namely Richard Kramer — surpasses the will of the majority, we are no longer living under a properly functioning democracy. Marshall said, “A legislative act contrary to the Constitution is not law.”
He did not mention that referendums approved by the citizenry contrary to the Constitution were not law; they should be, by their very nature, law.
Even in the bastion of liberalism that is California, there is a semblance of respect for traditional roles. Until the majority deems it fit and just to alter the status quo, activists like Judge Kramer and San Francisco mayor Gavin Newsom, who initiated the whole debacle, should and have to defer.
