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California Puts Judicial Activism Back on the Agenda
By Colleen Carroll Campbell
Posted: Monday, May 26, 2008

ARTICLE
St. Louis Post-Dispatch
Publication Date: May 22, 2008

Just as pundits were dismissing it as a phantom threat irrelevant to this fall's election, judicial activism came back with a bang. By a margin of one vote, four judges on California's Supreme Court managed to flout the will of 4.6 million California voters last week by manufacturing a constitutional right to gay marriage.

The court overturned a gay-marriage ban that 61 percent of California voters backed in 2000. The ruling was greeted with sharply divergent reactions from our leading presidential candidates. A spokesperson for Democratic Sen. Barack Obama said the candidate "respects" the decision, while a spokesperson for Republican Sen. John McCain said that the senator "doesn't believe judges should be making these decisions."

California's constitution does not mention a right to gay marriage or forbid discrimination on the basis of sexual orientation, so California's judges relied on some tricky legal footwork to find the state's Defense of Marriage Act unconstitutional.

The majority's decision acknowledged that from "the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman." The ruling also recognized that California's domestic partnership law gives same-sex couples virtually the same legal benefits and privileges as married couples.
Yet neither marriage's age-old definition nor the parallel arrangement that grants same-sex couples equal benefits dissuaded the judges from denouncing traditional marriage as bigotry. Defining marriage as the union of a man and a woman violates the principle of equal protection under the law, they said, because it deprives same-sex couples of "the same dignity, respect and stature" that married couples enjoy.

Discounted by this ruling is the reason the law privileges male-female marital unions in the first place. These sexual unions, unlike same-sex unions, have the potential to produce children. Given that both children and society benefit when children are raised in stable households headed by a married mother and father, marriage enjoys special protections from a society that rightly encourages men and women to stay together to raise the children they make together. The fact that not all married couples have children and not all children are born to married couples does not negate the vital role that marriage plays in directing the sexual energies of men and women into durable unions that provide the normative context for rearing the next generation.

In redefining marriage as a gender-neutral relationship, California's judges severed marriage from its primary civic purpose. Rather than serving as a unique institution that bridges the sexual divide between men and women and ensures that, whenever possible, children are raised by their married mothers and fathers, marriage in California now will serve as a tool to combat homophobia and confer social approval on romantic relationships with no intrinsic connection to children or sexual difference.

However laudable same-sex marriage advocates may consider these goals, they are a far cry from the reasons marriage has been a privileged institution in virtually every known culture in history.

Californians dismayed by this ruling may be able to vote on a state constitutional amendment to defend traditional marriage in November. Americans elsewhere can express their frustration through less direct, but no less important, means: their votes for the president who appoints and senators who confirm federal judicial nominees. Given that the marriage battle may be headed for the Supreme Court and the next president could appoint several Supreme Court justices and many more lower court judges, candidates' views on rulings such as this one matter immensely.

If every voter outraged by judicial power grabs remembered that indignation on Election Day, we might begin to reclaim our right to decide the most important questions of how we order our life together. Such ballot-box backlash even could make judicial activism as passé as the pundits say it is.

-- Colleen Carroll Campbell is an author, television and radio host and St. Louis-based fellow at the Ethics and Public Policy Center. Her website is www.colleen-campbell.com.