A few thoughts.

California’s Propo­si­tion 8 would write the tra­di­tional def­i­n­i­tion of mar­riage into the state’s con­sti­tu­tion. The out­come on Novem­ber 4 will be sad, regard­less of who wins.

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The mar­riage that Amer­i­cans have known for most of their lives—with its expec­ta­tions, rights, and responsibilities—is a recent inno­va­tion his­tor­i­cally speak­ing. The received wis­dom about mar­riage has changed a lot. Polygamy and exclu­siv­ity have been praised and scorned. Legal, eccle­si­as­ti­cal, and parental approval have been some­times nec­es­sary, some­times not. The abil­ity of spouses to inherit prop­erty has shifted: some­times with, and some­times inde­pen­dent of, views on sex roles.

Con­sid­er­ing the West’s cur­rent embrace of roman­tic, two-​​person love, and its slow but evi­dent accep­tance of same-​​sex roman­tic rela­tion­ships, for­mal and soci­etal recog­ni­tion of same-​​sex mar­riage seems inevitable. Cal­i­for­nia would do well to embrace that reality.

But Cal­i­for­nia has not embraced same-​​sex marriage—and that is what makes the upcom­ing vote so prob­lem­atic, regard­less of the vic­tor. Yes, the Cal­i­for­nia Supreme Court directed state offi­cials to rec­og­nize same-​​sex mar­riages, but that hardly counts as an embrace by We­–the­­­–People Cal­i­for­nia. The high court’s deci­sion was dik­tat, and it over­turned the 2000 ref­er­en­dum that wrote the tra­di­tional def­i­n­i­tion into statute.

It is not con­cern­ing that the court over­turned a popularly-​​backed statute. After all, when a court over­turns any leg­isla­tive statute, it is over­turn­ing a law backed by the elected rep­re­sen­ta­tives of the peo­ple. If we accept that courts right­fully have judi­cial review, we should not com­plain that a court might over­turn a referendum’s result.

Rather, the court’s deci­sion is con­cern­ing because it is an exam­ple of a type of law-​​making that is unfor­tu­nately com­mon in Amer­ica. A group with a pol­icy goal, unable to win through the leg­isla­tive process, turns to the courts. The courts, find­ing an implied com­mand in the either the state or fed­eral con­sti­tu­tion, call the pol­icy con­sti­tu­tion­ally required, and so immune from mod­i­fi­ca­tion except by con­sti­tu­tional amendment.

We have seen this law-​​making by judi­cial dik­tat too many times: abor­tion, affir­ma­tive action, and crim­i­nal pro­ce­dure each have inspired inap­pro­pri­ate deci­sions. The case of abor­tion is instruc­tive. Before the U.S. Supreme Court’s Roe v. Wade deci­sion in 1973, states were lib­er­al­iz­ing their abor­tion laws. It was quite pos­si­ble that abor­tion would become legal for a major­ity of Amer­i­cans in short order.

Roe cir­cum­vented those leg­isla­tive efforts, forc­ing a one-​​size-​​fits-​​all solu­tion on the whole coun­try. Whether the legal­iza­tion of abor­tion is cor­rect as a mat­ter of prin­ci­ple is beyond the sub­ject of this post: the effects of the legal­iza­tion of abor­tion are lam­en­ta­ble. Oppo­nents of abor­tion prob­a­bly would have accepted polit­i­cal defeats in some states as the price of polit­i­cal vic­to­ries in oth­ers. With Roe, how­ever, they felt (jus­ti­fi­ably) they had lost a rigged fight. Rather than sim­ply skulk­ing off and accept­ing defeat, they orga­nized mil­lions of their fel­lows, many of whom would not have par­tic­i­pated in pol­i­tics absent Roe. Now, pro-​​lifers fight, and angrily, for they see a judi­cial field stacked against them. Pro-​​choicers fight too, but for a legal frame­work that seems pre­car­i­ous and under siege.

Com­pare the Amer­i­can expe­ri­ence to the Euro­pean expe­ri­ence. There, abor­tion is much closer to being a set­tled mat­ter. Polit­i­cally, the two sides have fought to a draw. Abor­tion law there is gen­er­ally nuanced, avoid­ing the either-​​or propo­si­tions of the abor­tion partisans.

The Amer­i­can gay mar­riage debate looks much like its abor­tion debate, and with much the same results. In sev­eral states, pro­po­nents have won out­right vic­to­ries through the courts. In many more states, gay mar­riage is flatly banned. For pro­gres­sives, it must smart that the president’s 2004 vic­tory in Ohio is read­ily attrib­ut­able to the Mass­a­chu­setts court deci­sion from that year: no court deci­sion, no huge con­ser­v­a­tive turnout, no Bush.

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What is the alter­na­tive to judicially-​​recognized same-​​sex mar­riage? Legislatively-​​recognized same-​​sex mar­riage. Per­haps no same-​​sex mar­riage would exist in the U.S. today. Nonethe­less, it would not be long before some states would rec­og­nize such unions; and though the acri­mony would be intense for a time, the result would be more sta­ble, because oppo­nents would accept a fair loss (or a com­pro­mise) much more read­ily than losses endured at the hands of a few judges.

A vic­tory for Propo­si­tion 8 in Cal­i­for­nia next week would mean a tri­umph of legit­i­macy over chi­canery. It would also be an unfor­tu­nate and offen­sive slap in the faces of California’s gays and les­bians. And it did not have to be this way.