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by J. F. Kelly, Jr. 5/22/08
The left coast continued its leftward lurch as California joined with Massachusetts, the nation’s second most liberal state, in authorizing gay marriages. This was not accomplished through the will of a majority of the people or their elected legislatures. Indeed, both states had passed laws providing that only marriages between a man and a woman would be recognized. Rather, it was dictated by the unelected justices of the states’ supreme courts who have the power to tell the citizens and their elected representatives which laws they may not be permitted to keep.
In the case of the California supremes, a bare majority of four ruled that California’s law banning same sex marriages, passed in 2000 by 61% of the vote, violated the state constitution. The court held that the legal rights and attributes traditionally associated with marriage “are so integral to an individual’s liberty and personal autonomy (italics mine) that they may not be eliminated or abrogated by the legislature or by the electorate through the statutory initiative process.” Some might argue that marriage isn’t at all conducive to personal liberty and autonomy, but let that pass. What’s interesting is that the opinion spoke of these rights and attributes as being traditionally associated with marriage. At the same time, Chief Justice Ronald M. George, speaking for the majority, dismissed arguments that the justices should abide by the historic understanding of marriage as a union between a man and a woman, writing that tradition alone could not be used to justify denial of a fundamental constitutional right.
J.F. Kelly, Jr.
Kelly, Jr. is a retired Navy Captain and bank executive
who writes on current events and military subjects.
He is a resident of Coronado, California. [go to Kelly index]
As it happens, the California state constitution does not specifically address a right to marry but that didn’t stop constructionist judges who believe that constitutions are dynamic documents that need to be reinterpreted periodically in accordance with changing values and mores. George maintained that previous court rulings have established a right to marriage. In other words, past rulings by an activist court provide the basis for a ruling that overturns centuries of world-wide understanding and practice regarding the legal and religious significance of marriage and the roles of husband and wife in creating and rearing children. It seems that in this enlightened age of political correctness where almost any behavior must be protected, unelected judges will decide which traditions we may keep and which must be modified. Will religion itself be next?
In addition to being a legal contract, marriage, to millions of Americans is a religious sacrament, sanctified by God, existing, not merely to provide “legal rights and attributes”, but to provide for procreation. Homosexual unions, like homosexual behavior, will remain abhorrent to millions of people whatever a court decides regarding their legality. Most traditional religions and cultures will continue to view same sex marriages as sinful and immoral and a debasement of the institution of marriage. It is, in most cases, a deeply ingrained moral and religious belief. Notwithstanding the claims of gay activists, this does not necessarily constitute homophobia. It is the behavior, not the person, that is reviled. No one that I know argues that gays should be discriminated against or denied any rights including the right to marry someone of the opposite sex.
The court’s decision virtually guarantees that gay marriage and a ballot measure regarding a constitutional amendment will be an issue in this fall’s election. It should be. A constitutional amendment is the citizens’ only recourse when their votes and the laws of their elected representatives are thrown out by judges who want to replace the traditions and mores of a majority of the citizens with their own.
The decision was hailed by many gay activists as an example of brave, forward thinking. But supreme court justices are not required to be brave and forward thinking. They are supposed to interpret the constitution—as it is written, not as they think it should have been written.
The ruling is hugely important to the gay community for reasons that go beyond the legal rights and attributes of matrimony. They seek acceptance of their lifestyle, not just as one that is reluctantly tolerated but one that is accepted as an entirely wholesome equivalent of (and alternative to) heterosexual behavior and traditional marriage. Rulings such as this constitute tacit government endorsement of such behavior and lifestyle which is why they campaigned so strenuously for an end to any restrictions on homosexuals serving in the military. But millions of Americans will continue to be influenced more by religious teachings and moral values in this regard than by political correctness or any court decisions in the matter. Religious beliefs are something that the courts cannot throw out. At least not yet. CRO
2008 J. F. Kelly, Jr.