The California Supreme Court now has joined Massachusetts in judicially creating a constitutional right to same-sex "marriage." The decision not only bodes ill for the future roles of marriage and family in our society, but also marks another milestone on the slippery slope to judicial supremacy in this country.
When this case was at the lower appellate court level in 2006, that court's majority rejected the challenge to California's marriage statutes, and in doing so accurately set forth the role of the courts in these marriage cases: "In the final analysis, the court is not in the business of defining marriage. The Legislature has control of the subject of marriage, subject only to initiatives passed by the voters and constitutional restrictions."
However, the California Supreme Court brushed off the appellate court with these words: "We conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling … to justify withholding that status from same-sex couples."
Courts that usurp the legislative function ultimately lose the confidence of a free people who believe that in a constitutional democracy, it is the people who make the laws, not judges. A judicial opinion finding a "right" hidden in the penumbras of a 100- or 200-year-old constitution that ushers in a sea change in an institution as fundamental to America's social structure as marriage may, in the short term, please the particular constituency that benefits from it. But in the long term, such judicial imperialism erodes the constitutional principles of the democratic process. Marriage has been under a measured and unrelenting judicial attack since the Massachusetts decision in 2003. A slow tyranny is still tyranny, and Americans, who have a proud history of rejecting such efforts when they spring up suddenly, are slowly waking up and feeling the boiling water of courts that have increasingly lost their legitimacy.
The California Supreme Court clearly decided "what ought to be" rather than "what is." But the function of "what ought to be" belongs to the people and their elected legislators, not a handful of crusading escapees from law school who find the actual practice of judging deadly boring when compared to the temptation of creating social policy.
The judicial function exists so that the playing field upon which society competes stays relatively level, with consistency and predictability being the watchwords. To many lawyers who become judges, that's just not as appealing as the chance to change the world.
In this country, we have created state and federal constitutions that reflect a "separation of powers" whereby the legislative, executive and judicial functions are carved out from each other, each branch respecting the boundaries between its function and that of its coequal partners in the governing process. We have an ingenious system of "checks and balances" that keeps all branches of government accountable to some degree, but the underlying assumption remains that the function of each branch is reserved to that branch alone.
One of the charges of English tyranny from the Founders that made its way into the Declaration of Independence was that colonial judges, appointed and paid by the king, were acting as extensions of the king's will, and not as a separate branch of government. It is no less a tyranny that, at this point in history, we have a judiciary that in many cases wants to exercise the legislative function as an extension of the judicial. The Founders, as seen through the eyes of Alexander Hamilton's Federalist paper No. 78, believed that the judiciary's interpretive function made it the "least dangerous branch" of government. The California decision makes that observation sadly laughable.
The good news, however, is that even in California, the people are entitled to the last laugh. A proposed constitutional amendment defining marriage as between one man and one woman awaits the voters of California in November, having received more than 1.1 million signatures during the petition process. If that amendment passes, perhaps the justices on the California Supreme Court will be forced to dust off their unused copies of the state constitution and discover that it is the citizens, not the courts, who decide how they should be governed.
