Those Crazy Conservative Activists
Again

Yesterday’s California
Supreme Court ruling, relying on the California state constitution to
find unconstitutional the exclusion of gays from the California institution of
marriage, is already being (predictably) misunderstood and
mischaracterized. For an excellent summary of the opinion and a debunking
of the fallacious attacks against it, check out Glenn
Greenwald.

Probably the most common charge
being leveled against the California court is that its judges were
“activist,” and thwarted the will of the people, or usurped the role
of the legislature, or both. I find these vague charges of judicial
activism tiresome: they’re raised only when courts reach outcomes the
people howling “Activists!” don’t like. And the
“Activist!” charges ignore the excruciatingly obvious, fundamental
fact that when a court in a democracy interprets a constitution, the
court is *supposed to* overturn laws enacted by the people or their
representatives if those laws violate the constitution. The
will of the people, or the laws of the legislature, prevail in a democracy
subject to the constitution. So if you don’t want “activist”
judges overturning popular laws, you might as well get rid of the constitution
itself, which is designed and intended precisely to place limits on how the
people and the legislature can express their wills.

If the point above doesn’t make
sense to you, think of how the Supreme Court Justices in Brown
v Board of Education overturned the “separate but equal”
segregated educational framework that had been enacted with popular backing by
the duly elected representatives of so many southern states. If you want
to argue that courts shouldn’t as a matter of principal overturn laws they find
violative of their constitutions, you should be prepared to argue that the
Brown court, too, exceeded its authority.

In fact, anyone who wants to argue
that gay marriage should be left to individual states (and remember, the
California ruling was by a state court, pursuant to a state constitution, and
binding only in California), you should be prepared to argue too that Brown was
wrongly decided — that “separate but equal” education did not
violate the Constitution’s 14th Amendment guarantee of equal protection of the
laws and should have been a matter for individual states to decide for
themselves. I don’t see how you can rationally argue that “separate
but equal” education was unconstitutional and was rightly struck down by a
court as such, but that “separate but equal” marriage (or no gay
marriage at all) is constitutional and should be left to states to decide.

You might have surmised by now that
I’m not impressed by the notion that gays should be able to form “civil
unions” equivalent in all ways but name to marriage (this was key to the
California court’s finding — that there is, after all, a great deal in a name).
I’d be equally impressed by the notion that blacks should be permitted to
attend institutions of higher education as long as the institutions they were
permitted to attend were not called “colleges” or
“universities.”

Here’s a little thought experiment
to clarify things. Today’s Wall Street Journal has an entirely
predictable editorial, “Gay
Marriage Returns,” lamenting the California court’s
ruling. Let’s see how the editorial reads if we replace references to
“gay marriage” throughout with references to “black-white
intermarriage,” instead. If you can distinguish the rights of blacks
and whites to marry each other from the rights of gays to marry each other, I’d
like to hear the argument (and note that the California court cited Perez
v Sharp, where in 1948 the California court struck down black-white
marriage bans on 14th Amendment equal protection grounds).

Just when the news
was filling with stories about a Republican Party gasping for air, along comes
the California Supreme Court’s 4-3 decision yesterday legislating black-white
intermarriage. The GOP certainly hasn’t done anything to deserve such luck…

California’s Supreme Court is not
the law of the land, but its 4-3 ruling, titled “In re Marriage
Cases” for six consolidated appeals, explicitly told both the state’s
voters and its elected legislature to get lost. Back in 2000, California voters
by 61% approved a proposition asserting that the state could only recognize a
“marriage” between a white man and a white woman or a black man and
black woman…

While the popular spin on these
black-white intermarriage rulings holds that this is an all-or-nothing war
between Democrats and Republicans, nothing could be further from the truth.
Absent an occasional burst of judicial fiat such as this, the American people
have been conducting an admirable exercise in democratic discovery about
black-white intermarriage.

While 27 states have passed
constitutional amendments banning black-white intermarriage, reflecting what
opinion polls show to be overwhelming public sentiment, most Americans do not
want the U.S. Constitution amended to prohibit black-white intermarriage. Back
in 2004, some 52% of Bush voters favored black-white unions stopping short of a
“marriage” designation. This was also Mr. Bush’s position.

In other words, the American people,
rather than simply shunning the desire of some blacks and whites to marry each
other, are clearly willing to take up the matter and work it through their
legislatures. California’s legislature has passed bills twice to authorize
black-white intermarriage; both were vetoed by Governor Arnold Schwarzenegger.
If California can find a Governor willing to sign off, so be it. It is
preposterous, though, to let four judges decide this for a state of more than
36 million diverse individuals.

Most of all, the black community
wants social acceptance. It should look to what flowed from Roe v. Wade:
unending bitterness. A wiser course in 21st-century America is to trust the
democratic process.

If you don’t think denying gays
access to marriage denies them equal protection of the laws, you must also
think such a denial would be constitutional with regard to blacks or other
minorities. Do you?

Ultimately, opponents of gay
marriage seek to legislate based not on logic, but on the peculiarities of
their own preferences. They’re guided not by the consistent application
of law, but by the fickle idiosyncrasies of their own taste. Rather than
reaching outcomes through the application of principle, they seek to conjure
principles to support outcomes at which they have already comfortably
arrived. And, with the usual unintended irony, they then accuse their
opponents of “judicial activism.” If it weren’t so sad, it would
be hilarious.