While We're On the Topic of Marriage

I ran across this statement from Andrew Sullivan -- puzzling and essentially nonsensical:

Some fresh polling data: a tiny majority of Californians support marriage rights (49 to 46). A massive majority (64 to 32) favors either civil unions or civil marriages. I say: no court pre-empting of this astonishing achievement in democratic persuasion.

I can't fathom what he means by that last sentence. Should the California Supreme Court refuse to render an opinion on the marriage case, which it has now heard? (Which, actually, it cannot do -- it is required by law to hand down an opinion within 90 days.) Just leave the situation sitting as is, with a majority favoring some form of recognition of same-sex relationships, the legislature twice having passed a bill legalizing same-sex marriage, which the Governator has twice vetoed (on the grounds that the courts should decide the issue -- fairly ironic, coming from a Republican governor)? How can a court pre-empt an opinion poll? The only way I can see this statment making any sense at all is if the court finds that the California constitution does not permit same-sex marriage, which is highly unlikely, given public opinion and the actions of the legislature. (We must keep in mind, however, the tortured and fearful decisions out of New York and Washington state, which are, at their best, deeply flawed. I suppose anything can happen, if the justices are scared enough. See Dale Carpenter's comments on the oral arguments.)

Another point that Sullivan obviously doesn't get: in this country, it is the courts' job to pre-empt these sorts of questions. It's called "judicial review," and it means that laws get thrown up against the Constitution. If they stick, fine. If they don't, they're out. It's up to the courts to decide, not the Governator nor the "people." That's why we have a bill of rights and an independent judiciary. It's a fundamental principle of the American system that seems to have been buried in the right-wing "activist judges" mantra. As an example of how badly out of whack even the most sympathetic voice can go in this direction, see these comments by Joe Murray.

Make no mistake; the controversy in California is less about marriage as it is about living in a constitutional republic. At stake in the Golden State marriage cases is the will of the California people to define marriage. And to that point, the process has been ugly, incoherent, frustrating.

In 2000, California voters approved Proposition 22, a declaration that marriage is between one man and one woman. Point taken.

But between 1999 to the present day, California enacted, and further defined, a domestic partnership package that is de facto marriage. Lawmakers have also passed legislation permitting gay marriages twice, but such measures have been vetoed by Gov. Arnold Schwarzenegger; thus proving the wheels of democracy are loud and slow.

“The thing about democracy, beloveds, is that it is not neat, orderly, or quiet. It requires a certain relish for confusion,” wrote columnist Molly Ivins. And why should democracy be neat?

If a democratic republic is to function, things need to get messy, values need to be defined (and re-defined), and minds must be pried open.

Decisions have to be made and for that to happen people must remove themselves from their comfort zones and ask themselves what type of people they wish to be. This is the splendid, yet sadistic, nature of a democracy.

On the other hand, a nation that relies upon unaccountable officials—whether they be generals, judges, or kings—does not consist of a free people, but rather an enslaved citizenry unable, if not unwilling, to answers questions critical to the nation’s existence.

“To consider the judges as the ultimate arbiters of all [moral] questions is a very dangerous doctrine indeed,” wrote Thomas Jefferson, “one which would place us under the despotism of an oligarchy.” It is this issue—the issue of who decides, not who marries—that should be the focus of the California marriage debate.

This has it completely bass ackwards. I'm not going to play Quote the Founder with Joe Murray -- you can find a quote from anyone to support whatever position you want to take. (And, when it comes right down to it, judicial opinions can be overridden if there is the will for it. The override is subject to gradations of difficulty -- on a constitutional question, which is to say one regarding fundamental rights, it's not at all easy.) The essential point here is that the sovereignty of the people has never been absolute in this country, a fact that seems to be forgotten when debating these questions. "The will of the people" is a red herring. Murray conveniently forgets these two factors: the courts are not completely unaccountable, due to our system of checks and balances; and the will of the people loses precedence to constitutional guarantees of rights.

Murray is flat wrong: the will of the people of California to define marriage is not the issue at all. The issue is whether the fundamental guarantees of individual liberty will prevail regardless of the animus of the majority toward the minority. That has always been the question.