Thursday, July 3, 2008

Get'em to the Church on Time

Get’em to the Church on Time

Get’em to the church on time. AMEN.

They’re lining up in West LA, San Francisco, and Palm Springs to marry. The first legal day of gay marriage was June 16. Marriage licenses in the week after June 16 were 250% of the normal rate for the state. Even the historically conservative Orange County witnessed a boom in marriages. God Bless’em.

They’re dancing in the streets in the Castro, and celebrating on Fire Island, Key West, P’town, Asbury Park, Hillcrest, GaYbor, and Capitol Hill (Seattle).

But for all they know, the California Supreme Court’s 4:3 affirmation of gay marriage may fall to the voters in the November election. And that is how it should be – the deciding vote, yea or nay, should be by the voters – not four judges.

I was born, raised, and educated in San Francisco. I lived my first 24 years in the City. I don’t care what anyone’s sexual orientation is, and in November I will vote against the proposed constitutional amendment to ban gay marriages in California.

If Ellen DeGeneres and Amanda Lee Rogers, aka Portia de Rossi, wish to exchange nuptials, let’s celebrate with them. Let George Takei and Brad Altman live long and prosper when they marry. And if Mayor Antonio Villaraigosa, he of an imploding marriage, conducts gay as well as straight marriages at City Hall, that is his prerogative. And if California can reap an estimated $560 million in tourist dollars for marrying non-residents, which Massachusetts does not, then Hooray for Hollywood. We need the money. We also need in the interim the millions of dollars flowing into the state on both sides of the November referendum.

But I strongly oppose the process by which 4, or even one judge, can judicially legislate and unilaterally change the marriage laws of California, and perhaps America. The voters of 44 states have banned gay marriages, either by statute or constitutional amendments (27).

The California opinion was written by Chief Judge Ron George, who according to both the Los Angeles Times and Orange County Register, agonized over the decision. Had he followed the law, the decision would have been easy. Had the California Supreme Court sat in Sacramento instead of San Francisco, the outcome may have been different. The California voters banned gay marriages by an overwhelming 61%-39% vote a few years earlier. This time the vote will be on a proposed amendment to the California Constitution which will restrict marriages to heterosexual couples.

To some extent the issue is symbolic, since many states including California have legalized civil unions, which provide most, but not all, the legal benefits of marriage, to couples, both gay and straight. Employers are increasingly providing domestic partner benefits to same sex couples. And at some point in the future a liberal Governor would have signed a same sex marriage bill by the legislature. The Court did not have to act.

Americans have increasingly accepted, over the space of a few decades, homosexuals in mainstream society. Few, even in San Francisco in the 1960’s, would have predicted tolerance of the gay life style in such a short time.

But marriage is different for many. Symbolic to some, emotional to many, the issue goes to the heart of the Judeo-Christian heritage, the foundation of America’s moral code.

Some critical social issues must ultimately be resolved by the body politic. The United States Supreme Court in the Dred Scott decision could not resolve the slavery issue. A tragic Civil War was necessary, and the aftermath still affects American society 14 decades later. Conversely, England’s Parliament ended slavery throughout the British Empire decades before our Civil War. Nor could the Court solve racial discrimination in Plessy v. Ferguson. The people will be the ultimate arbitrator of the gay marriage issue.

Some judicial legislation goes too far. Judges, the least democratic branch of government, display contempt for the public and the republic when they usurp both the voters and legislatures in creating new “rights” out of thin air. California and Massachusetts have done so on the gay marriage issue. In a sense, it aborts the critical resolution by the body politic.

Which brings us to Roe v. Wade!

Roe v. Wade is the epitome of judicial legislation, even by the standards of the activist Warren Court. Rather than cut off the debate over abortion, it sharply raised the decibel level. A strong woman’s rights activist, Professor Ruth Bader Ginsburg, thought at that time Roe v. Wade was wrongly decided.

Two personal vignettes from my memory, and a final observation, are important. By the late 60’s and early 70’s, legislatures and voters were legalizing abortion, just as they are currently reassessing gay rights. For example, California protects a woman’s right to choose in the state constitution.

I was completing my dissertation at the University of Michigan in 1972-73. New York had liberalized its abortion laws, but Michigan had not yet. Signs were posted in the Michigan Union:


Justice Harry Blackman, a Methodist, agreed, prior to penning Row v. Wade, to give the dedication speech at the new law building at Ohio Northern, a Methodist university, in 1974. When Justice Blackman rose to give his outdoor speech, a line of demonstrators, led by the Irish Catholic Associate Dean and his Polish Catholic wife, rose in peaceful protest.

I knew then that Roe v. Wade was different. It sat off a rising storm of protest and outrage, including violent protests, arson and murders, that was unnecessary. One by one, the vast majority of states were legalizing abortion, albeit with reasonable restrictions.

Sadly, Roe v. Wade led the way in turning the judiciary into a partisan branch of government. In a few states like Massachusetts, the judges not only have lifetime tenure, but in fact are not even confirmed in office by the Legislature. Thus, these judges are the one branch of government totally unresponsive to the voters. Even in California, the Supreme Court judges have 12 year terms, albeit it is simply a yes or no vote.

My observation: The GOP has to hope the Supreme Court does not overturn Roe v. Wade. If the Court does, any attempt to ban abortions will result in a large turnout, especially by women, against Republican candidates. Women, both liberal and conservative, want the right to choose, rather or not they would exercise it.

No comments: