In the absence of the Federal Marriage Amendment, the final decision on how widely same-sex marriages will be recognized rests in the hands of judges. Point to any regulation or “defense of marriage act” you like, but if judges won’t enforce it, or choose to interpret it out of existence, that law will fall. Some indication of how trustworthy our judges are came a couple of days ago, when San Francisco Superior Court Judge James Warren (former Supreme Court Chief Justice Earl Warren’s grandson) refused to halt the issuing of patently illegal marriage licenses-for a month-because, he said, the request for a cease and desist order had been written with a semicolon where the word “or” should have been.
I think what’s happening in San Francisco is undermining something fundamental-something that includes, but goes beyond, rule of law. When it comes to gay marriage, affirmative action, and other hot button social issues, conservatives are used to being shut out of mainstream debate. That has sparked the growth of a whole alternative media. But I think we’re seeing something new here-a new level of disregard by liberal elites for the broader public, and for the very idea of democratic debate and decision making. When state and national opinion, a recent referendum, and the plain meaning of the law, are openly disregarded by political and legal officials, the bases of civil comity are eroded in fundamental ways. Whether gay marriage is eventually nationalized or not, I think we’re all going to pay a price for the way this battle is being fought. In any case, at this point, it is absurd to ask conservatives to trust in the good faith of judges. If you think anything short of an amendment can stop gay marriage, you are dreaming.