Never mind states’ rights, California has judged
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.
Background:
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.
Now what?
“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 judges.
“(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.