Wedded to Activism

by The Editors

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conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid.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.