One of the great things about our readers is that they often alert me to pieces I might otherwise have missed. And in the past twenty-four hours, two readers, Leah and Eric, have respectively linked blog post and a New York Times Op-Ed which, in the wake of Judge Walker’s ruling, make fine contributions to the debate on gay marriage.
First, the blog post, then in a subsequent post I’ll address the editorial. In Schwarzenegger: I Lost the Gay Marriage Case. Now Go Implement the Winners’ Position as Quickly as Possible, Patterico faults Walker for trampling “all over the issue with elephant feet, willy-nilly issuing pronunciamientos regarding the proper role of tradition in deciding the legality of gay marriage, and couching these edicts as ‘factual findings’:
This sort of inquiry is far more suited to decision through the collective wisdom of millions of voters, debating a topic in public — rather than in a courtroom, litigated by two sets of parties who (as Schwarzenegger’s pronouncement highlights) may actually agree with each other. . . .
Judge Walker’s ruling was simply the negation of our vote, on a matter that should properly be decided by the People and not by an unelected judge (and no, it does not help that this particular unelected judge could benefit directly from his own ruling). . . .
A courtroom is not the place to resolve the question of whether society ought to accept gay marriage. A courtroom is not the place to decide whether thousands of years of tradition are to be given any weight in assessing whether a law abrogating that tradition is rational. I keep hearing that the proponents of Proposition 8 simply didn’t make their case in court. They should not have had to.
Like me, Patterico voted “No” on Prop 8. And he’s not the only straight “No” voter I’ve heard from who’s unhappy with the decision. Whether we like it or not, the issue of gay marriage is a controversial social issue. State recognition of gay marriage represents a significant social change; it could very well be a good social change if those gay people who elect marriage as a means to define their relationships appreciate the meaning of the institution.
The real problem with judicial resolution of controversial social issues is that it often leads to backlash at the ballot box. Thirty-seven years after the Supreme Court thought it had resolved the abortion issue, it remains a potent and divisive force in American politics. In every state where voters have had a chance to weigh in on gay marriage, they have opted for the traditional definition of marriage.
Those margins tend to be higher in years following court decisions favorable to gay marriage. In 2004, 73% of North Dakota voters approved Measure 1 amending the state constitution “to define marriage as being a legal union of a man and a woman; provides that no other domestic union can have the same legal effect.” That was approximately one year after the Massachusetts decision mandating the Bay State recognize same-sex marriages.
Two years later, South Dakota, demographically similar to its northern neighbor with whom it shares part of a name, only 52% of voters approved Amendment C, a similar ballot measure. Perhaps that 20-point drop can be attributed to the fact that earlier in the year, the highest courts in Washington and New York State, respectively, had rejected demands that their states recognize same-sex marriage.
Perhaps, the most effective in the campaign to pass Prop 8 was one that pointed out that 4 unelected judges overturned a state law (2000’s Prop 22) passed by millions of voters. Now, this decision hands social conservatives another campaign issue, one judge overturns the will of seven million citizens.