The Problem With Court-Mandated Gay Marriage

By Alan Stewart Carl | Related entries in California, Law, Marriage

As you all know by now, the march towards universally allowed gay marriage continued today. From my understanding, the specifics of the California case create a legal pathway to gay marriage without actually mandating the legalization of the practice. So I want to be clear, this post is inspired by today’s ruling but is not specifically directed at the details of this case.

Let me begin by saying that I support gay marriage and would vote for it if given the opportunity. But I also believe such matters are best decided by the people and not the courts. Without the validation of the public will, gay marriage legalization seems tainted, as if it’s being forced upon the majority by a few activist judges. While many in the gay community get what they’ve desperately wanted, they don’t get what gay marriage truly needs: the approval of the majority.

For many decades now, liberal activists have used the courts to circumvent popular opinion. Instead of doing the very hard but very necessary work of changing minds, many liberal activists simply declare their beliefs to be “constitutional rights” and proceed to convince judges that the will of the people must be overturned.

Now, this is where someone always brings up Brown v. Board and that’s a good point. Except let’s remember that overturning segregation did not require any interpretive gymnastics. The post-Civil War amendments make pretty clear that discrimination on the basis of race is unconstitutional. The court didn’t create a new law where there wasn’t one but rather rectified a long standing violation of an existing law.

Unfortunately, in later cases (most notably Roe v. Wade), courts decided to not merely insure that existing civil rights and liberties were protected, but decided to create wholly new rights to which no elected body or referendum by the people ever approved. Even when the end results are positive, as they are in this gay marriage ruling, the method is flawed and ultimately creates the sense among opponents that the new law is invalid and must be overturned. That not only creates greater desire to politicize the judiciary but creates increased animosity amongst the public.

I believe gay marriage should be a right. But I don’t believe it is a right that currently exists within our system of laws. Utilizing the courts to bring about this social change may be expedient but it is not necessarily the wisest course. For gay marriage to thrive, not just under the law but within greater society, the majority must give its consent. When judges remove that choice and that responsibility from the populace, they greatly inhibit society’s ability to arrive at consensus. We are left to simply stand on opposing sides and shout at one another about court rulings instead of coming together and finding an agreement with which the majority can live.


This entry was posted on Thursday, May 15th, 2008 and is filed under California, Law, Marriage. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

24 Responses to “The Problem With Court-Mandated Gay Marriage”

  1. Rob Says:

    I was embarrassed when prop 22 was passed and I’m glad it was overturned, but you make a very good point.

  2. Avinash_Tyagi Says:

    Sometimes you have to force something onto the public in order to get them to accept it, and I don’t believe anything in the constitution forbids same sex marriage

  3. bubbles Says:

    There is a large difference between a “right” and a “constitutional right.” I personally believe that gay marriage is a “right,” but it is still not guaranteed by the Constitution. So to say that a ban on gay marriage is unconstitutional, well that’s kind of a hard argument to make when the Constitution says nothing about gays or marriage (and as an extension any kind of marriage as a “constitutional right” is bogus).

    But I do believe that gay marriage is a right… and once the people or their representatives agree with me can write that into law, then it will be recognized.

  4. Avinash_Tyagi Says:

    Actually bubbles, since the opposition to same sex marriage is from the religious groups you can make the argument that it would be a violation of the seperation of church and state

  5. mike mcEachran Says:

    Aren’t courts supposed to be above the whims of the electorate? Isn’t that the very point? So that the ‘wronged minority’ has a voice even when existing in a time and place that suppresses and discriminates against them? I don’t know enough about the current set of laws to determine if gay-marriage can be justified. But I know that when Thomas Jefferson wrote “all men are created equal” he embedded a doctrine into the fabric of our country that he himself and most people he knew contridicted. The realization of that fundemental truth is inevitable, and courts that guide us to it are only “activist” in the sense that they are actively navigating us in the direction that the framers pointed. It’s not always up to the “people”. It’s up to the idea on which this country was founded. The idea was even bigger than the framers. And it is syill bigger than us now. The beauty is, the realizatoin of that idea is inevitable, as you point out. So we really don’t need to fuss about it. But we do need to point it out to each other from time. Judges do, that is.

  6. Rob in Denver Says:

    bubbles wrote:
    “There is a large difference between a “right” and a “constitutional right.” I personally believe that gay marriage is a “right,” but it is still not guaranteed by the Constitution.”

    I’m pretty sure the Constitution doesn’t guarantee heterosexuals the right to marry, either. Besides, this decision is specific to the State of California.

    What happened there today is that the Calif. Supreme Court — which is comprised of six Repubs and one Dem, by the way — did its job: overturning a law that reached too far into the lives of the people it’s intended to serve. As a conservative, I applaud the Calif. Court — not because I approve of gay marriage (I’m never going to have one so it matters not at all to me), but because it was the right decision for it to make.

  7. gerryf Says:

    Why does the right decry “activist” judges except when a group of judges in arguably the most activist moment in judicial hisotry stepped in and handed the presidency to George W Bush?

    Or is it only activist judges who they don’t agree with that they don’t like?

    Anyway, that’s not directed at you ASC….your points are well reasoned and I respect where you are coming from. I do, however, agree with Mike. I can appreciate that judges do sometimes stretch things, but it is a logical outgrowth of the now longheld opinion that the Supreme Court is entrusted with maintaining the consistent and orderly development of federal law. Take special note of the word “development”

    The law is not static, it evolves.

  8. wj Says:

    Just a little perspective for those who argue that the people (or, presumably, the legislature) should decide this. The California Legislature, in each of the last two years) has passed a bill to legalize gay marriage. By fairly substantial (although not veto-proof) margins. To say that this is “jsut activist judges” is overlooking part of the picture.

  9. bubbles Says:

    Denver Rob:

    I didn’t articulate my point of view quite right. In my own fantasy world the only state-recognized unions would be similar to common law ones between two individuals who have shared living space for an extended period of time. This could go beyond just two people entering into a sexual relationship too. For example, my father was lived at home with his two “parents”: his father and his father’s aunt. There’s really no reason for marriage or unions to be recognized by the government other than, as Justin stated in his earlier post, for “legal and property purposes, and nothing else.”

    But the likelihood of this sort of thing becoming law is highly unlikely, so I’m supporting gay marriage rights at the current time since it it the only sensible approach which has any likelihood of becoming reality. But I also recognize that a ban on gay marriage isn’t necessarily prohibited by the US or California constitution. In fact, many states have implemented bans into their very constitutions via amendments.

    So we’ve got a very confusing situation here that varies from state to state… but as it stands, states may either ban or allow same-sex (or heterosexual, or polyamorous, or incestuous) marriage if they choose. That makes it even more confusing… so while I’m all for gay marriage, I should have pointed out that I’m totally aware of how truly effed up this situation actually is.

  10. rob Says:

    Don’t be stupid gerry, the courts didn’t hand bush the presidency in 2000, the voters did or if you prefer the electoral college (which protects our country from being run solely by New York and California) did.

    Activist judges regardless of their political persuasion circumvent the legislative process. They overstep the purpose and effectively create legislation by interpretation instead of upholding the Constitution.

    As Alan’s post highlights it really is a matter of circumventing the process for political expediency. In that light, regardless of the outcome, it’s an abhorrent practice.

  11. khaki Says:

    rob, the abhorrent practice that you’re talking about is the practice for which judgeships were created. the idea of “activist” judges is a red herring created by politicos. there are gaps between the laws. people fall through those gaps. judges were created to decide what do when a situation is ‘in the gap’. they are hired to “interpret” and apply precedent based on their knowledge and understanding. the law is usually by its very nature a gray area. that’s why we need judges – to help us apply the law to new situations and determine if existing or new laws fit the intentions of the framers of the constitution. it’s rarely clear. otherwise, we’d all just get a big book of rules, and that’s it, we’re done. judges exist to give us rules even (especially) when we don’t like them.

  12. Rob in Denver Says:

    @bubbles: Thanks for the clarification. As for the laws of individual states… isn’t that where such laws belong?

  13. Jim S Says:

    The reason that parts of the constitution exist is the recognition that the majority often does not recognize that minorities should have rights. I love how some people constantly forget that this is one of the basics of our country.

  14. gerryf Says:

    Stupid Rob? Stupid because it doesn’t agree with your interpretation? Truth is, the 2000 election was botched, the Florida Supreme Court tried to correct it, and the Supreme Court jumped in and prevented the recount from occuring, handing the election to Bush when he didn’t win.

    Gore was following the legilsative approved process in the recount, and Bush, knowing he was going to lose, had the courts step in and stop it.

    Sorry you don’t like it, but that is what happened.

  15. Becky Says:

    I am going to give you a quick lesson in constituional law–because you need it. The school segregation cases invovled unequal treamtment of black people. They are a special case in constitutional law–as you point out. This is becaue of the shame of our past, and the fact that because of it the constituion was flawed from the very beginning. This was corrected with the 14the amend, etc. after the civil war. African=Americans are considered to be a “suspect classifcation”–any unequal treatment of them by the government will be “closely scrutinized”.

    But, those amendments , and it is also inherentin the constituion as originally drafted, prohibit the unequal treatment of anyone absent a “compelling state interest”.

    Gay people are treated differently than others–they are prohibted from entereing into the civil contract of marriage. And this also has a number of consequences–such as taxes, legal ramification of disunion, etc. There are some 3000 specific instances in federal law alone that confer benefits on heterosexual married couples, that are not available to same sex couples.

    So is there a compelling state interest in treating these two groups differently?

    The courts that have said yes claim there is a compelling state interest in promoting and licensing propogation. That is just a pretend reason–since about half of the births are out of wedlock.

    So, actually the courts of Californa and Massachusetts have been very rational–and brave only in the sense there is such hysteria whipped up in the publc about it. Parenthetically, I note that Massachusetts has not fallen into the sea or been reduced to a pile of salt–it has had no effect on anyone, others than same sex couples who wish to wed.

    I will agree with you that Roe v. Wade and some others were wrong–that is because they were novel legal arguments–designed to reach a result. Same sex marriage is not–to rule against it the courts have to engage in novel reasoning the othe way.

    In America, which is a democracy, but which we value and protect the rights and opinons of others, it is sometimes necessary for the courts to come down on the side of the rules by which we were founded– the constitution. I have seen polls that when the Bill of Rights is presented to the publc as a proposal Congress is considering it is overwhelmingly oppossed. The constitutional rights were snuck in my some elistits who were enamered of the classical liberal thinking of the Englightenment.

    Although, most changes of a civil rights nature do start at the bottom and move up–there is a stubborn resistance–when the courts are useful. How long would it have taken for segration or the laws against miscegnenation to end without the intervention of the courts?

    ~Becky

  16. Dos Says:

    Becky, sweatie –

    First of all, I want you to know that I am currently taking applications from bisexual and lesbian women of your caliber to join a polygamist cult in Missouri. I would be honored to get your application and since I am the only one on the review committee, I can guarantee a positive outcome.

    Like I said in an earlier post, I have no problem with individual states declaring an expansion of their own constitutional rights of equal protection in contradiction to the will of their citizens. If Californians want to be ruled by judicial fiat, ultimately that is their decision.

    But Lawrence v. Texas is a joke of an opinion and a bad joke of constitutional jurisprudence. While I personally enjoy getting “Lawrenced”, the substantive due process right simply wasn’t within the scope of the framer’s thought and we know that Benjamin Franklin and Thomas Jefferson got “Lawrenced” on a regular basis by slaves and prostitutes alike.

    Now back to you, tell me more about this little barista that you keep stalking…dirty, dirty girl.

  17. wj Says:

    Please spare us the references to Roe v. Wade, or Lawrence v. Texas, or other irrelevancies. If you want to talk about this decision, why not focus on Perez v. Sharpe? That was the decision on which the California Supreme Court modelled this — being a bunch of conservative, non-activist judges who value precedent. (FYI, that was the decision where, in 1948, the Court overturned California’s ban on interracial marriages.)

  18. Socks Says:

    Becky,

    You need a quick lesson in constitutional law, so I am going to give you one:

    Neither the 14th Amendment or any other part of the Constitution “prohibit the unequal treatment of anyone absent a “’compelling state interest’”.

    The Constitution requires heightened scrutiny for disparate treatment based on certain classifications: race, sex, religion, etc.

    Homosexuals are not a protected class under the Constitution and so only a legitimate state interest is required for disparate treatment.

  19. Jimmy the Dhimmi Says:

    Its time to rise up and demand an end to this gender apartheid, and desegregate public bathroooms, or sports teams, or class rooms ect. Since race is equal to gender in all respects, and “Blacks only” or “whites only” bathrooms are a violation of the constitution, we must demand this same standard and institute unisex bathrooms and all other institutions throughout the country. We can start in California.

  20. khaki Says:

    Jimmy, do you hear the collective sigh?

  21. Jimmy the Dhimmi Says:

    Yes Khaki, its, “huuuurrmmph….he is right again(!)”

  22. Donklephant » Blog Archive » Courts Legalize Same-Sex Marriage in Connecticut Says:

    [...] is now legal in Connecticut by decree of the state’s supreme court. Once again, a matter that should be decided through the democratic process is usurped by the courts. What’s really unfortunate is that Connecticut was the first state to [...]

  23. Dwight Benignus Says:

    As a Christian in modern times, I am unsure whether homesexual marriages are against the sanctity of marriage.

  24. Dwight Benignus Says:

    Can someone please remove the posts by this name: Dwight Benignus.

    This person is masquerading with my identity. I am the real Dwight.

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