Wedded To Activism

(National Review Online)  This column was written by the editors of the National Review Online.

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The California supreme court, by a 4-to-3 margin, ruled Thursday that it is not sufficient that California has enacted a domestic-partnership scheme that makes available to same-sex couples "virtually all of the same substantive legal benefits and privileges" as marriage. The court instead invented a "right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships." In short, it required that marriage itself - both the term and the institution - be redefined to be fully available to same-sex couples.

Chief Justice Ronald M. George's majority opinion is as arrogant as it is confused. Never mind that, as his opinion concedes, "[f]rom the beginning of California statehood, the legal institution of marriage has been understood to refer to a relationship between a man and a woman." Never mind that the very right to marry that he so wildly misconstrues is built on that understanding. Never mind that California voters in 2000 overwhelmingly ratified that understanding by adopting by initiative - by a 61.4-percent majority - the California Defense of Marriage Act.

As associate justice Marvin R. Baxter aptly stated in dissent, "Nothing in our Constitution, express or implicit, compels the majority's startling conclusion that the age-old understanding of marriage - an understanding recently confirmed by an initiative law - is no longer valid.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."

Fortunately for Californians, they will likely have an opportunity this November to undo their court's mischief. Headed for the state ballot is the California Marriage Protection Act, a voter-sponsored initiative that would amend the California constitution to provide expressly that "Only marriage between a man and a woman is valid or recognized in California." The initiative would thus override the court's misinterpretations of the state constitution. (The California Defense of Marriage Act in 2000 was an ordinary law, not a constitutional amendment.)

Reasonable people of good will have competing views on whether and how state laws should accommodate same-sex relationships. Our own views on this matter are traditionalist. But in a representative democracy, everyone ought to agree that any changes should result from legislation, not from activist judges who twist and distort constitutional text to their own ends.

Both John McCain and Barack Obama say they are opposed to same-sex marriage, but both oppose a constitutional amendment to codify that view. Such an amendment is the surest way to prevent judicial meddling. But there is nonetheless an important difference between these candidates. McCain, judging from his record and his recent speech against judicial activism, will try to appoint judges who will refrain from engaging in such meddling. About Obama we know no such thing, and have reason to suspect otherwise. We hope that Senator McCain will be willing to draw this distinction, which puts him on the right and popular side of this issue.
By The Editors
Reprinted with permission from National Review Online

[joecoolswat]

Suppose in the near future, when Conservatives are in power and appoint a number of Judges to the bench....Then California has a vote of millions of voters....will Liberals like it when the Conservative Judges vote to subvert the will of the people and for instance, and judge to make sodomy or homosexuality illegal?....Subverting the will of the people, by Judicial activism can go both ways....remember that

[imnho]

These were conservative judges who are not into judical activism making the ruling.

The big question is are we going to treat *** as second class citizens? The struggle to force them back underground was lost years ago. Thr far right seems to think that if they can''t force them back into being invisible, then they will try to make them second class citzens. I guess they see it as some sort of consolation prize.

Ther need for a consolation prize does ot justify abridging domeone elses civl rights,

[dan9111]

I ask all non-liberals to look on the bright side.

This will spell the end of alimony and widespread preferential divorce settlements. If is no way to tell who is ''the man'', then there is no way the court can decide who to punish during divorce.

This is a victory for conservative values. Certain privileged gold diggers will soon lose the divorce paycheck. The more who come out of the closet, the more we will regain liberty that was taken by the Democrats.

[roger_inkart]

Yes, gas is 4 bucks a gallon, houses are being foreclosed everywhere, we''re drowning in debt and the dollar is becoming the peso and Iraq is a quarmire....but what about that whole g.ay marriage thing, eh?

The NRO should be overjoyed. One of the conservatives favorite wedge issue has surfaced once again.

[ubrew12]

Conservatives should be happy that decisions such as this bring those grinning male faces back onto our screens to ''scare straight'' the sheep.

If 2004 is any guide, expect to see more such decisions/stories/prosecutions, whatever. Our TV and computer screens will be filled with *** grinning stupidly at each other, herding the sheep into the Republican fold.

[stopkidding]

We need to stop all this judicial meddling and leave things exactly as unfair as they have always been.

[johnshaft4]

The "editors" should date Pastor Ted.

[wogerwabbit]

NRO = neocon = irrelevant gasbags

[cyberus-2009]

Why are people surprised?

Its an election year ... gay marriage was going to come up at some point .. its a on of the main drums in the republican backbeat.

[irliberal]

Strange how the neocons blame "activist judges" when any judge rules against them. What they fail to recognize is that the "activist judges" that made this decision are - for the majority - REPUBLICAN.

The NRO is proving once again that it is a bigoted, hateful piece of shoddy journalism. This isn''t even a question anymore... it''s a well established fact.