In a previous piece, I wrote that, “when state courts define marriage as gay activists want it defined, citizens of the various states and their elected representatives respond by . . . . codifying the traditional definition of marriage.” Yet, one gay scholar has decided that San Francisco Superior Court Judge Richard A. Kramer who held the California’s ban on same-sex marriage unconstitutional was merely “following the political branches of state and local government, not leading them.”
To come to such a conclusion, this scholar, law professor William B. Rubenstein, defines state laws on marriage not as the legislature passed them, but as he wants the legislature to have passed them. To be sure (as Mr. Rubenstein notes), the California legislature has granted a number of privileges to same-sex unions. And I commend our legislators for that. But, despite Mr. Rubenstein’s wishes, our elected representatives never defined those unions as marriage.
Mr. Rubenstein suggests that the apparent views of a majority of the state legislature are more important than the actual votes of the people:
It is true that Judge Kramer declared a ballot initiative enacted by the state’s voters unconstitutional. But that ballot initiative was not supported by voters in the Bay Area, and it does not appear to align with the views of a majority of the Legislature in Sacramento.
The state legislature never voted for gay marriage. But, it appears to Mr. Rubenstein that they want it. (Especially since voters in the most liberal region in the state opposed a state initiative precluding gay marriage.) Finding an appearance of non-alignment between the views of the state legislature and the views of a majority of the state’s citizens (in an actual election), Rubenstein thus justifies Judge Kramer’s decision (overturning the initiative passed by that majority). (Kind of sounds like those Democrats who believe John Kerry beat the president because the exit polls said he did.)
Attitudes like those of Mr. Rubenstein won’t help advocates of gay marriage win the hearts and minds of the majority of Americans. Based on the decisions of a handful of judges, his odd interpretation of California law, and the views of voters in one of the “bluest” regions in the country, he claims that “it is difficult to argue that [Judge Kramer’s] views are outside the mainstream.” This is the problem of so many gay leaders and activists; they define mainstream opinion by considering the views of those in the liberal regions where they live and dismiss the views of those outside their areas of comfort. Even dismissing the views of a majority of citizens of the very “blue” Golden State.
Gay Americans are poorly served by such leaders. Our leaders take comfort in isolated judicial rulings in favor of same-sex marriage when they should be trying to figure out why, in every state where Americans have had the chance to vote on initiatives defining marriage as the union of one man and one woman, they have approved such provisions, often overwhelmingly.
Nearly every day, we read that yet another state legislature is considering amending its constitution to define marriage as the union of one man and one woman. Or placing such a provision on the ballot. If gay leaders follow the lead of William B. Rubenstein, we will soon see every state in the union amending its constitution to preclude gay marriage. And they will not be able to figure out why most Americans don’t agree with the “wise” judges who see the world as they do.
Yes, Mr. Rubenstein is right, Judge Kramer is following the lead of other judges. And their decisions (on gay marriage) are invariably followed by popular backlash overturning them. As I have said many times before, if gay leaders really want marriage, they need to focus not on convincing judges and liberal mayors but on influencing our fellow citizens. You do that by getting out of the “blue islands” and into the “red” states and talking about marriage as most Americans talk about marriage, using such words and expressions as “values,” “monogamy,” “mutual benefit” and “lifetime commitment.”
-Dan (AKA GayPatriotWest): GayPatriotWest@aol.com