juristocracy beats democracy in california
by Matthew Smock
Published: May 21, 2008
In a 4-3 decision, the California Supreme Court put an end to California majorities trying to protect traditional marriage - at least for now.
The decision is an unpopular one, even in my home state of California, a bastion of liberalism. Of course, the decision had to be unpopular because the popular decision was made back in 2000 by over 60% of Californian voters, wherein they amended the constitution to read:
“Only marriage between a man and a woman is valid or recognized in California.”
So are unpopular court decisions in general unhealthy for American democracy? Of course not. The Constitution and many state constitutions established independent judiciaries for a reason. They were put in place to provide a check to overbearing legislatures and to protect the rights of minority groups. An independent judiciary, in other words, protects democracy from becoming a tyranny of the majority, where the legislature, whose decisions are at least popular enough to have majority support, rules in complete disregard of the rights of the outsiders, the minorities (see Federalist No. 78).
Was this particular decision healthy for Californian democracy? No. In the long run it will only prove detrimental to the vital institution of an independent judiciary. When the Supreme Court makes a decision contrary to the will of the majority, we can often respect the Court’s decision so long as it limits itself to interpreting the validity of existing laws. But in the case of Woo v. California, the court created a brand new right to same-sex marriage. (Interpreting all the time must get awfully boring.) However, unfortunately for the judicial branch, Californians will most likely nullify the decision of the Supreme Court through a ballot initiative, amending the California Constitution to ban gay marriage.
The people of California won’t simply overturn the decision because it was unpopular. As Americans, we are able to accept a lot of unpopular decisions, as long as there is a legitimate legal basis for it. Let’s say, for example, the US Supreme Court ruled that the KKK could not be barred from an adopt-a-highway program on the basis of political views (see Cuffley v. Mickes (1999)). The majority of us would be disappointed at the outcome - having to see KKK signs on the freeway is a real drag. While unpopular in substance, we would still accept the decision because we value the freedom of speech.
Woo v. California is different, though, and Californians will most likely overturn the decision not just because it is unpopular but because it is has no constitutional basis. Unlike “free speech,” a right you can read about in the First Ammendment, the right to marry someone of your same sex is not mentioned in either the United States or California Constitutions. And though activists judges disagree, most Americans still view the Constitution as the supreme law of the land. In the event that “We the people” discover a fundamental right that has been passed over, “We” can amend the constitution. On the other hand, when a small group of men or women sitting atop a judicial pedestal begin creating laws, voters can, and in this case, will exercise their right to nullify the courts decision.
Now, before you begin flailing me with your copy of the Fourteenth Amendment, I would like to state unequivocally that denying legal marriage between man and man does not “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Gay men can still practice free speech by proclaiming themselves to be married and they retain the freedom to peaceably assemble in their union ceremonies. And herein lies the solution to the whole matter: leave marriage up to churches and private institutions, rather than the state.
If I had my way, I’d take the power to define marriage out of the judicial and legislative branch. That way, everyone would be able to exercise their freedoms as they best see fit. However, as long as marriage rests in the hands of the state, the people should decide what kinds of marriages are acceptable, not the courts. When courts decide on this non-constitutional issue, they are interpreting law much like sitting kings - and we all know what democracies do to sitting kings. Judicial activism often leads to legislative action designed to reverse the effect of the prior ruling. If the process repeats itself too often, a court’s legitimate, yet unpopular, decisions may fall victim to the same process. And nobody, not even same-sex couples, benefit if that’s the case.
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(6)
May 21st, 2008 at 12:59 pm
Your argument here is excellent. Though it seemed you were teatering on the edge of contradiction, you completely saved it by executing the “the right to marry should be taken from the state, and put into the hands of private institutions and churches” argument. Though I believe sincerely that one is not GRANTED a right by the state - and instead the state makes a decision to oppress or not to oppress a right that an individual has inherently - you are spot on with your hypothesis of the kind of problems that will be created if this kind of judicial activism is given the freedom to spread throughout American courts. Taking the power to grant marriage out of the hands of the state is the only way to protect an individual’s right to marry whomever they choose - watching the three branches of the government take turns overruling one another’s decisions, as you said, will not benefit anybody.
May 22nd, 2008 at 12:52 pm
If States should stay out of Marriage what does it matter which branch of government gets the State out of Marriage? Argument sounds a little flawed.
May 22nd, 2008 at 4:39 pm
I think this is a well-formulated representation of the American political system. The California Supreme Court is attempting to redefine marriage. Doing so is turning thousands of years of history on its head. The state must play some role in recognizing marriage however. Marriage is a legal status that has certain rights associated with it. It is impossible to completely take the state out of the process.
May 23rd, 2008 at 11:01 am
To Danny:
Though I cannot speak for Mr. Smock, when I refer to “taking the State out of marriage” I am requiring that the State not be able to make any kind of decision regarding marriage - issuing licenses, saying who can’t marry who, or morever, saying who CAN marry who. Making a decision for OR against the status of same-sex marriages is still putting marriage into the hands of the State. When you don’t let the State hand out licenses to marry in the first place, they cannot make a decision for or against any form of marriage.
To Legal Nut:
Though for thousands of years same-sex marriage has not been recognized as legitimate, it was only a short-time ago that interracial marriages were not accepted either. In fact, the Economist just reported on the death of the first woman to receive a State Marriage license for an interracial marriage. Approximately half of a decade ago, people were making the same argument regarding historical acceptance of interracial couples as they are now making about gay couples. The argument that cultural acceptance of an institution throughout history is pertinent to its legitimacy is not only narrow-minded in its support of our evolution as human beings, it would be a detriment to individual rights in general.
May 23rd, 2008 at 11:35 am
Interesting that you call it “evolution…”
May 23rd, 2008 at 12:38 pm
The definition of the word “evolution” from dictionary.com:
1. any process of formation or growth; development: the evolution of a language; the evolution of the airplane.
2. a product of such development; something evolved: The exploration of space is the evolution of decades of research.
3. Biology. change in the gene pool of a population from generation to generation by such processes as mutation, natural selection, and genetic drift.
4. a process of gradual, peaceful, progressive change or development, as in social or economic structure or institutions.
If you mean to be facetious about the term that I chose to represent gradual, but progressive change, I shall refer you to the dictionary.com definition quoted above. As you can see, agreeing with the argument that I have made does not require one to support the Theory of Evolution (capital “E”). The word ‘evolution’ as you see above is actually quite uncontroversial - would you be less inclined to respond with a snarky comment had I used the word “growth”? Though here I will not build my platform espousing my personal beliefs on the subject, I must say that you have found the most inconsequential part of this argument to take issue with.
May 23rd, 2008 at 6:01 pm
Oh, no. I apologize. I wasn’t taking issue with you at all. I saw the article this morning and didn’t have time to go into it further than to leave a quick response. I meant more of “interesting that you use the word evolution” rather than “… call it evolution”
So, if you had said “growth” I would have attributed it solely to “growth in our acceptance” which is clearcut and I probably would not have commented. But when I read evolution, it went beyond describing our level of “acceptance.” It stretched into describing people themselves. I thought of people “evolving” in the sense of them “changing.” Are people changing? Are people different now than they were thousands of years ago? In this example, is being gay “new” or is addressing it new?
June 5th, 2008 at 2:57 pm
Chelsea, I find your view that most of society is narrow-minded to be very narrow minded. Seems proper since you are coming from a narrow selection.
June 6th, 2008 at 7:07 am
To Legal Nut:
I never even used the term narrow-minded to generalize the whole of society who may or may not share your opinions - I actually spoke specifically of your myopic historical view and weak argument that because gay couples (and apparently also interracial couples) were not allowed to marry in the past, that this is enough grounds to claim that they should never marry in the future. If you read carefully, I never even used the term “narrow-minded” to describe you as a person: only your aforementioned argument.
So Legal Nut, according to you, anybody who is in the ideological minority is “narrow-minded?” Well, I find your assertions that those in the minority are narrow-minded, narrow-minded, and also ridiculous and unfortunate.
“Individual rights are not subject to a public vote: a majority has no right to vote away the rights of a minority.”
-Ayn Rand, The Virtue of Selfishness
June 26th, 2008 at 11:28 pm
Though not unrelated or unimportant in the least, the topics of the amount of State control over individuals and the morals of gay marriage are not exactly what we’re talking about.
I just wanted to say that I agree that the Court’s job is to interpret the law, not legislate it. And I say its just a great example of how our form of government is working, that the people are keeping the Supreme Court in check by exercising their powers in the legislative branch to ammend the California Constitution to stop the overstepping judges on the Supreme Court.
And though I agree that the majority doesn’t have the right to vote away the rights of the minority, I also agree that it depends what the minority is defining as “rights.” I’m sure that radical fundamentalist jihadists think that it’s their religious right to kill Americans, but I think that we would take that “right” away from them. :)
June 27th, 2008 at 12:32 am
Winston you hit it right on the nose. Our founding fathers wanted an independent judiciary, in part, to protect minority interests from a TYRANNY of the majority. They knew democracies could be as tyrannical as despotic monarchies through examples such as ancient Greece. At the same time, however, they weren’t willing to throw the idea of representative government out the window. The solution was a seperation of powers, maintaining representative government while resisting tyranny with three branches.
That being said, looking out for the interests of the minority can only go so far until we don’t even have democracy anymore. In a sustainable democracy, the majority shouldn’t oppress the minority, but it sure as heck should have the right to vote to vote to preserve society if it so chooses. In the case of gay marriage, there is certainly a good argument out there that giving gays marriage liscenses doesn’t hurt anyone, but it really doesn’t hurt anyone to only give out a piece of paper to a man and woman. Because there is no inaliable right to defend, the court should leave this question to the people.
Furthermore, I think the founders created an excellent bill of rights and procedures to amend it if they left some things out. Most minority rights worth protecting are already in the text of our Constitution, and if they aren’t, they should be added to it. The courts, therefore, should exercise caution on making rulings that are clearly a stretch from the text of the Constitution. The justices acted poorly in this case because it was both a nonconstitutional issue and there really wasn’t an inaliable minority right to defend. These decisions should be left up to the people. If not, what’s left for the people to decide?