The Supreme Court of California’s unilateral redefinition of marriage last week showed so much contempt for the doctrine of separation of powers that even many supporters of gay marriage who once spoke favorably of Massachusetts’ similar 2003 ruling are uncomfortable with California’s. The editorialists at The Washington Post, for instance, who consider gay marriage “a matter of social and political justice,” lambaste the court for “an unnecessary bout of judicial micromanagement by redefining marriage through a novel reading of the state constitution.” They worry that the “flawed court decision could trigger serious political backlash because the outcome was produced not by the state’s voters but by a 4 to 3 majority of judges.”
If by “backlash” one means a reassertion of constitutional prerogatives in a November defense-of-marriage ballot initiative to amend the state constitution, that last part is correct. This ruling is a constitutional travesty. As Justice Marvin R. Baxter put it aptly in his dissent, the court is “not satisfied with the pace of democratic change, [and] now abruptly forestalls that process … [It] substitutes, by judicial fiat, its own social policy views for those expressed by the people themselves … The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.” There is no question that California’s Supreme Court trampled over process and the rights of the majority in this case.
What is most telling, though, is to compare this week’s reactions to what was said in the aftermath of the 2003 Massachusetts ruling. The Post opined much less severely back then. It admitted that the merits of the court’s discovery of a new right in the state constitution are “less clear” than what it considers to be the rightness of the policy, but not enough to dwell on the subject. The Post noted that the matter would be referred to the state legislature, and then did not much protest when parliamentary tricks were used to railroad the state’s traditional-marriage ballot initiative. Indeed, very severe and arguably unconstitutional tactics have become the norm for proponents of gay marriage.
What changed? Aside from the Massachusetts jurists’ candor in admitting to a virtual rewrite of the state constitution - California’s jurists insist that no such thing happened on their watch - only the political context has changed. Gay-marriage advocates failed to realize in 2003 that advancing an unpopular agenda through the courts invites a political reaction that supporters would term a “backlash” and others, including ourselves, simply call constitutional democracy in action. This time, that lesson is well learned. Indeed, it is not possible to sort gay-marriage supporters’ constitutional objections from purely strategic considerations in a case such as this. The pro-gay-marriage contingent has already shown an unusual willingness to confuse the two when convenient.