EDITORIAL: Judicial imperialism

By | Friday, November 28, 2008

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Whatever one's view of gay rights, its activists seem to unintentionally be taking the country closer to legal chaos. Take two recent cases, one from each coast.

Last week, the New Jersey attorney general pressured the online dating giant, eHarmony Inc., into a settlement requiring it to offer services to homosexuals. Never mind that gay-dating sites already crowd the Internet or that eHarmony was founded by an evangelical Christian psychologist to provide a unique faith-based approach to dating. Now eHarmony Inc. must develop a Web-dating service for same-sex couples, pay a $50,000 fine and pay $5,000 to the man who filed the original complaint because, he claims, his rights were violated when he couldn't meet gay men on eHarmony. We suppose he can use his $5,000 settlement check to sue his neighborhood bakery for offering doughnuts but not bagels.

Where does the principle established by the eHarmony settlement take us? Can a dressmaker be sued if she will not also make suits for men? Can a vegetarian sue a butcher who doesn't offer heads of lettuce? Businesses in New Jersey have entered a legal Twilight Zone where, at least theoretically, they can be sued for everything they do do.

Over on the Left Coast, California voters passed Proposition 8, an amendment to the state constitution saying that the only "valid or recognized" marriages are between a man and a woman. Voters effectively reversed a California Supreme Court ruling that legalized that same-sex marriage - contrary to an earlier state-constitutional amendment passed by voters. Now the California Supreme Court is firing back. It has decided to hear arguments that, in effect, the constitutional amendment is unconstitutional.

The legal theory of opponents of Proposition 8 is so spurious that it should be dismissed on summary judgment. The gay-rights objection boils down to this: Voters decided on a question that they were not supposed to decide on. Can every losing side of every proposition avail itself of this novel defense? If so, does the state proposition process survive as a meaningful measure of self-government?

Instead of dismissing a radical theory that can only sow chaos, the California Supreme Court is giving it unusually rapid consideration. Could it be that the state high court does not like being reversed by voters and wants to defy their will a second time?

Somewhere along the line, the rights of the people to vote for the policy outcomes they favor, the exercise of which has never before been considered harmful to anyone, are now seen as dangerously retrograde. How did we get here?

Our working definition of a zealot is anyone who pursues a cause without concern for its effect on uninvolved bystanders. In New Jersey and California, lawyers and judges seem determined to take a stand on gay rights - without considering their actions may open every business to suits unrelated to gay rights and eliminate the referendum process for everyone. If the gay-rights movement does not change its tactics, the legal chaos - sowed by its most zealous supporters - may turn more of the public against it than any sermon.

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