re: juristocracy beats democracy
by Max Clark
Published: May 26, 2008
In the steamy, Turkish bath of the gay marriage issue, California’s Supreme Court has recently made the proclamation that if “you are here (within the legal California state boarders), and ‘queer’ (a term for a practicing homosexual in the common vernacular), then opponents of same-sex marriage should get used to you and your spouse.”
As this is an animate issue and one of a complex political significance and judicial reasoning, I will try to play this article straight (i.e. no jokes).
To begin with, if you have read the neighboring article “Juristocracy Beats Democracy…” (and I suggest you do as it adequately makes the judicial activism case I am refuting) there is a small, but important correction to be made. Proposition 22 which contained the fourteen words “Only marriage between a man and a woman is valid or recognized in California” was not a California constitutional amendment, it merely modified the state statute. This is important because if these words were in California’s State Constitution, as is being proposed later this year, California’s same-sex marriage case would have been thrown out.
So now onto my more general disagreement:
In a famous footnote to U.S. v. Carolene Products (1938), Supreme Court Justice Stone said that it is the duty of the court to protect the rights of insular minority groups. The decisions in a number of NAACP petitioned cases (up through and beyond Brown v. Board of Education (1954)) showed that this was a growing trend. Generally, though activist, these decisions have been looked on favorably. Even the article I am currently rebutting concedes that “An independent judiciary… protects democracy from becoming a tyranny of the majority” - which it did, mostly, until the mid 1970’s.
Of course, the courts are limited by statute and acting too far outside their roles (i.e. “legislating from the bench”) is not appropriate. So the question is, have they here? Advocates for gay marriage would certainly say no, as this is a clear equal protection case, a right imposed on states by the 14th Amendment. Opponents say “They have; homosexuality is gross. Don’t touch it, courts.” But what they are really disputing is the foundation for both arguments; a dispute over whether or not homosexuals form a distinct class (outside of Advanced Musical Theatre 370).
The popular slogan used by many social conservatives to describe their stance towards homosexuality, “Hate the sin, love the sinner,” seems like an adequate compromise to those saying it, but does not allow that homosexuality may be embedded within an uncontrollable hormonal division, rather than being a pure preference. The simple fact remains that if you do not consider homosexuals to be a class, you can not expect 14th Amendment protections to be applicable.
If homosexuals are a separate class, then the direction for the ruling on this case stems from decisions on interracial marriage bans from mid-20th century and may even draw from most of the civil rights cases and legislation under its belt, which together with associated briefs would form a stack of papers taller than the Washington Monument (roughly).
In terms of marriage, this remains a civil issue and despite the rhetoric, churches cannot be forced into performing ceremonies because of the two basic protections of the establishment clause and of freedom of association, which the Boy Scouts of America have successfully used to the same ends. A common mistake occurs when people blur these lines and think that the right to confer marriage licenses upon gay couples strikes at the institution established traditionally by their churches. To rally against this legislation simply because of one’s interpretation of divine will would actually mean a triumph of theocracy over both the courts and the state.
Now finally, we’ve arrived at the sticking point. If this decision does seem to grate against the will of the public, there is a legal remedy for their discontent; already on the ballot is an initiative to officially amend the state constitution which, as above, would nullify the recent ruling. So democracy wins out in the end.
Until then, we all shall have to endure the back and forth punditry; ignoring the only important issue (one of class distinction) and instead relying on more high-brow debates focused on whether or not by logical distinction it is all right to now marry a goat.
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May 28th, 2008 at 10:56 am
I think your reference to the Carolene case is misplaced. Carolene talked about “discrete and insular minorities.” The going jurisprudence for protecting these groups commands that the group seeking protection have an “immutable characteristic” like gender or race. There is a philosophical debate on whether people are born gay. With people switching back and forth all the time, the so called “discrete and insular” group is really amorphous and in a constant state of flux. There would be no reliable way of telling who was born gay and who wasn’t. Because gays are not a minority for legal purposes, they do not deserve special protection.
May 28th, 2008 at 11:10 am
Well, that was my point. The entire issue over whether gays should form a legal class or not. This in term stems from the Born/Turned homosexual debate. This next decade will certainly see this argument develop and become more distinct. While I don’t agree with your position that because it is difficult to classify a homosexual they should not be legally treated as a class–while all other aspects of society seem to have no problem making that clear distinction–I think you actually might have done a better job summarizing my thesis than I had.
May 28th, 2008 at 11:11 am
*For clarification, the argument I referred to was that over whether gays should form a legally protected class or not
May 28th, 2008 at 2:40 pm
This has nothing to do with whether being gay is a choice or not. It has nothing to do with whether gays are a class like women, or blacks. It’s about one indisputable truth. Gay marriage hurts nobody, but the two consenting adults who choose to partake in it.
No one. Not a single person in the long sad history of this argument, has ever come up with an actual rational argument for why two dudes or two gals getting hitched hurts someone else. Until some one does, they should be allowed to do what they want.