- The Washington Times - Thursday, May 22, 2008


Marriage isn’t just the chief underpinning of society or, for that matter, a raunchy comedy routine. In the minds of easily the great majority of Americans, marriage is an institution reflective of divine intent concerning human relationships and duties.

Well, never mind. The California Supreme Court doesn’t seem to mind, having ruled by the margin of a single vote that California can’t constitutionally ban same-sex marriage.

Um … can’t? Can’t affirm, in a judicial finding, the large, historic, profoundly rooted beliefs of the human race? Seemingly not.

Only in California. Or Massachusetts. Or certain other cutting-edge American addresses not worth the trouble of naming. There’s a tendency to laugh aloud at the sheer presumption of people with law school educations in lecturing fellow citizens on their outmoded modes of belief, and, correspondingly, on the need - Now! No back talk! - to get with the new program.

If no judicial decree can make marriage anything other than an institution reflective of the large realities in which humans participate, there’s no cause for alarm. Two people of the same sex holding hands before a judge or clergyman is … two people holding hands before a judge or clergyman, nothing more.

Marriage it ain’t. That’s between people of opposite but complementary attributes and physiologies. The merger, so to speak, of those attributes and physiologies is what we call marriage. Flap your arms and attempt to try an aerial passage across the Grand Canyon: You’ll have as much luck at that as at same-sex marriage. Can’t do it. Period.

The problem, in California, isn’t that you can’t do it. The problem is that the state’s highest court has attempted this metaphysical heavy lifting in defiance both of logic and popular sentiment.

As one dissenting justice, Marvin R. Baxter, wrote in the gay marriage case, “[A] bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the people themselves.”

It’s what they do in North Korea and Iran, in case we’ve forgotten: Decide in the People’s name what the People need - then give it to them, to choke on, as often as not.

I can’t forbear from noting that John McCain promised, if elected president, to appoint federal judges unwilling to torture constitutional or statutory language to secure particular outcomes. California’s high court, though not a federal venue, demonstrates what he means.

The California majority said prohibition of same-sex marriage constitutes unconstitutional discrimination. Shocking that no one had noticed before. All this time, the assumption that men and women had been created for each other, not least in order to procreate - and no one raised a finger. Not the old guys in the Bible. Not Plato. Not Aquinas. Not even Norman Mailer! Up pops the California, Supreme Court - I mean, its four-judge majority - to explain what forevermore had been said and thought and believed and practiced. Gosh - aren’t judges something?

Well, they are. Which is why Californians are being asked in November to amend their constitution and so prohibit as a legal matter marriages between Californians of the same sex. California’s highest court is causing Californians a lot of unnecessary bother and expense, while stirring up intramural ill will and setting an unwholesome example of judicial arrogance and intellectual disconnectedness.

Sad. Not prejudicial, ipso facto (in legalspeak) to the reality of marriage - which, as I say, is beyond reach - but sad. That’s because the California Supreme Court’s imprimatur will convince various folks that A is B and up is down. Some of these folks, newly convinced or reinforced in what they believed already, will then operate on those assumptions, with possibly tragic consequences.

Why don’t judges get it? Legislators write law. Judges interpret what others have written. Anyway, a national election coming up. The California Supreme Court, without knowing it, just put on a heck of a fund-raiser for John McCain.

William Murchison is a nationally syndicated columnist and senior fellow of the Texas Public Policy Foundation.

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