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.
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.
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.