Gay Marriage by Judicial Decree by Stuart Taylor Jr.
The Bear on May 27 2008 at 8:22 am | Filed under: Culture
California Chief Justice Ronald George’s majority opinion exuded impatience bordering on contempt for the government by the people that is the foundation of our democratic system.
I wholeheartedly support gay marriage. And I am happy for the many gays who rejoiced at the California Supreme Court’s 4-3 decision on May 15 ordering the state to stop calling committed gay couples “domestic partners” and start calling them “married.”
So why do I see the decision as an unfortunate exercise in judicial imperialism? Let me count the ways. Then I’ll touch on how it could be a harbinger of the constitutional innovating that we might see if the next president engineers a strong liberal majority–a likelier prospect than a strong conservative majority–on the U.S. Supreme Court.
First, the California court’s 121-page opinion was dishonest. This was most evident in its ritual denial of the fact that it was usurping legislative power: “Our task … is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership … but instead only to determine whether the difference in the official names of the relationships violates the California Constitution [emphasis in original].”
This was a deeply disingenuous dodge, if not a bald-faced lie, to conceal from gullible voters the fact that the decision was a raw exercise in judicial policy-making with no connection to the words or intent of the state constitution. It is inconceivable that anyone but a supporter of gay marriage “as a matter of policy” could have found in vague constitutional phrases such as “equal protection” a right to judicial invalidation of the marriage laws of every state and nation in the history of civilization.
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