Professor Bainbridge...on law, politics, religion, culture & food

California Same-Sex Marriage Decision

The LA Times reports:

The California Supreme Court decided today that same-sex couples should be permitted to wed, ruling that gay unions must be given the “respect and dignity” of marriage.

In a 4-3 vote, the court became the first in the country to apply the constitutional protections reserved for race and gender to sexual orientation. The Massachusetts high court struck down bans on same-sex marriage in 2003, but under a different legal theory. ... “One of the core elements embodied in the state constitutional right to marry is the right of an individual and a couple to have their own official family relationship accorded respect and dignity equal to that accorded the family relationships of other couples,” wrote Chief Justice Ronald M. George, joined by Justices Joyce L. Kennard, Kathryn Mickle Werdegar and Carlos Moreno.

Ed Whelan‘s post captures a couple of important quotes from the dissenters:

From associate justice Baxter’s dissent (joined by associate justice Chin):  “Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage … is no longer valid.  California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow.  If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means.

From associate justice Corrigan’s separate dissent:  “The principle of judicial restraint is a covenant between judges and the people from whom their power derives.… It is no answer to say that judges can break the covenant so long as they are enlightened or well-meaning.… If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”

I strongly support civil unions and am more or less neutral on the policy question of gay marriage. How society gets there, however, matters a lot.

Democratic Congressman and federal judge Abner Mikva once explained:

I think judges tend to be too separate from the political process and the body politic. I guess the best example I can think of is one of the great controversies of our time, the abortion controversy, Roe v. Wade. Let me start off, so everyone understands my prejudices, I support the result of Roe v. Wade. When I was a member of the state legislature, I was introducing proposals to make Illinois law approximate what Roe v. Wade later on did. That was going on in other legislatures. ...

And then, to my pleasant surprise, the Supreme Court came down with [a decision that] preempted the whole political process. They said, “Okay, as a matter of constitutional law we are going to say a woman has the right to choose, and if she decides that she want to have an abortion, she and her doctor can so decide.” The result pleased a lot of us, still pleases a majority of the people in this country. But it angered that minority with a passion, because they had just been short-circuited in their efforts to fight it out in the political arena. You can’t write a justice of the Supreme Court and say “Vote No.” You can’t even picket at the Supreme Court, though they tried to. There is a frustration that these five or six people, unelected, had made this basic decision which had been the subject of political process for so many years before. The justices were surprised. The late justice Blackman expressed his shock at how angry the minority was with the decision. I could have told him that was going to happen. And in retrospect, I wish the court had stayed its hand and allowed the political process to continue, because we would have legislated the effect of Roe v. Wade in most states—not all of them, but in most states—and we wouldn’t have had to pay the political price we’ve had to pay for it being a court decision. The people who are angry at that court are angry beyond measure. As far as they are concerned the whole system is rotten because they’ve lost their opportunity to slug it out.... 

Justice Ruth Bader Ginsburg has likewise stated that “Roe v. Wade . . . halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”

Hence, Daniel Henninger has argued that the culture wars:

[Date] to the Supreme Court’s Roe v. Wade decision of 1973. ... [T]he country’s judges the past 30 years have made much law touching people’s deepest beliefs about the ordering of public and private life, which previously was the first responsibility of elected legislatures. ... I think many people who don’t get paid for waging politics are becoming quite frustrated with dysfunctional legislatures that are now polarized--as in Congress or in California--essentially along the cultural faultlines created by 30 years of allowing judges to pre-empt the broader community’s ability to discover, or re-examine, its social beliefs. These legislators have become little more than clerks to judges and the complainants in their courts--the law as not much more than a brief. When this happens, citizens lose their status as voters or electors and become mere courtroom spectators. How can this be good?

Today, gay marriage occupies much the same spot in the political field that abortion did in 1973.

Accordingly, I think it’s instructive to compare the NY high court’s decision to leave the issue to the legislature to the judicial activism we saw today from the California Supreme Court. I wrote in praise of the NY court’s decision, explaining that:

Because it is custom, tradition, and long familiar patterns that enable people to live together peaceably, social change needs to come slowly. Change and progress are necessary, of course, but sudden change disrupts social bonds, induces stress and engenders controversy as old and vested interests are upset.

Sudden change by a cabal of unelected and largely unaccountable judges is particularly likely to engender controversy. Again, I’ll let Judge Mikva explain: “I don’t think it’s an accident that our founders put the legislative branch in the first article of the Constitution. The reason is that they perceived it to be the first among equals. Most of the people who’d been in Philadelphia had been members of the colonial legislatures, had been members of the Continental Congress, of the early congresses, and they understood the legislative process. They knew how it worked, and they recognized that there was a direct tie between where the people were and where the legislative branch was. They … were nervous about the judges because the English judges had not been an unmixed blessing as far as the colonies were concerned.”

The founders knew, like Spiderman, that “with great power comes great responsibility.” They ensured that Congress and the President could be held to account. If you don’t like what Congress is doing, you can vote for legislators you like better. You can contribute to candidates all over the country who share your views (of course, your ability to do so is limited because our judges have decided that political campaign contributions deserve less First Amendment protection than, say, child porn). You can give to 527 organizations that will promote your agenda. And so on.

Unfortunately, perhaps because they could not envision the extent to which modern judges would assert control over virtually all aspects of society and culture, the Founders failed to provide adequate accountability mechanisms. If you don’t like what the Supreme Court does, tough. All you can hope is that you can elect leaders who will eventually replace enough of those nine unelected old men and women with individuals whose views are more to your liking.

Abraham Lincoln saw the problem coming. He said of the Supreme Court’s Dred Scott decision that: “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” And so it is today.

The time is fast approaching when the preservation of democracy will require the creation of new mechanisms for holding judges to account. Term limits might be a good place to start. Until then, however, we must rely on judges to exercise self-restraint. We must hope that judges can tell the difference between cases where intervention is necessary and appropriate, like Brown v. Board of Education, and cases that should remain in the political arena.

So whether you agree with the N.Y. Court or not, they at least deserve our thanks for a rare display of judicial modesty. Now if only we could get those nine oldsters in Washington to emulate their northern counterparts.