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Carol Platt Liebau - Columnist

Carol Platt Liebau is a senior member of the editorial board. She is an attorney, political analyst and commentator based in San Marino, CA, and has appeared on the Fox News Channel, MSNBC, CNN, Orange County News Channel, Cox Cable and a variety of radio programs throughout the United States. A graduate of Princeton University and Harvard Law School, Carol Platt Liebau also served as the first female managing editor of the Harvard Law Review. [go to Liebau index]


A Democracy, Not an Oligarchy
Americans Deserve the Opportunity to Debate Gay Marriage

[Carol Platt Liebau] 2/23/04   

It must be wonderful to be San Francisco Mayor Gavin Newsom – or for that matter, the Massachusetts Supreme Court. How heady to be so convinced of the rightness of a cause that one is willing to ignore thousands of years of human history, a host of religious traditions – and the very concept of democracy!

Newsom, of course, is the San Francisco mayor who decreed that the city could issue marriage licenses to same-sex couples in contravention of state law. In fact, just four years ago in 2000, California’s voters approved Proposition 22, which stated that “Only between a man and a woman is valid or recognized in California.” The proposition prevailed by a 23-point margin – 61.4% of the vote in favor, and only 38.6% of the vote against (minorities’ support for the measure was stronger than whites’). None of this mattered to Newsom, who has disenfranchised his fellow Californians with a merry disregard for existing law that calls to mind the Florida Supreme Court, circa November 2000.

The Massachusetts Supreme Court has behaved with similar arrogance. Week before last, it upheld its earlier opinion finding a right to gay marriage in the state Constitution drafted by John Adams -- and in fact ruled nothing short of marriage, including civil unions, would comply with its previous holding.

So what’s missing here, aside from any sense of humility? For starters, there’s been a complete absence of any participation at all by a duly elected legislature – much less the people it purports to represent. The issue of gay marriage itself is controversial, but it’s being made even more so by the way its proponents are attempting to establish it. Their evident contempt for the democratic process has been breathtaking.

The cleverer advocates of gay marriage – like Barney Frank – have startled many with their sudden devotion to the concept of federalism. Let each state decide for itself, they argue. And the federalism argument would be compelling – except for the very evident administrative problems that will arise should a marriage that is valid in one state be deemed invalid in the next. The situation Frank and other advocates envision will resemble nothing so much as the pre-Civil War United States, where the same African-American could be considered nothing more than “property” in some states, but be deemed “free” in others. We all know how difficult it was to resolve the inherent tensions underlying that issue – and so do gay marriage advocates. It’s simply impossible to maintain a system under which a citizen’s legal status changes, depending on which state line has been crossed. Over time, it would become impossible to do anything but recognize gay marriage across the country.

Ironically, those who now insist that decisions about gay marriage should be left to each state were much less willing to allow a federalist system to resolve another great moral issue of our time – abortion. Certainly, abortion laws are much more amenable to state-by-state resolution and administration than the marriage laws are. But many of those who now seek the chance to advocate for gay marriage one state at a time are those who were most reluctant to offer pro-life advocates the same opportunity.

The abortion issue has been a cancer on the face of American politics ever since the Roe v. Wade decision short-circuited the robust political discussion that should have taken place. The topic continues to poisons the body politic – not to mention the current struggle over judicial nominees. And all this might well have been avoided, had the Supreme Court declined to impose by judicial fiat its own views about the “right” answer to a delicate moral question, which causes great anguish to people of good will on both sides of the issue. Much of the bitterness has been caused by a dogged conviction on the pro-life side that its views never received a fair hearing – and a nagging fear on the pro-choice side that, had the issue been more thoroughly aired in the political arena, the outcome might well have been different.

Americans are good people, who combine common sense and an attachment to time-honored values with a real sense of decency and fair play. When important moral decisions are left to their judgment, they tend to come to the right answer. Homosexuals who wish to marry should have the opportunity to see if their views can prevail in the political arena, not because they were forced down their fellow citizens’ throats, but because their arguments changed hearts and minds. Likewise, the people of faith and traditionalists who oppose gay marriage also deserve the chance to make their case in favor of the long-established understanding of marriage, without being preempted by those who would dismiss their well-founded misgivings aside as immaterial.

As citizens of the greatest democratic society on earth, all of us deserve a robust, respectful and thorough debate on the issue of gay marriage – one that isn’t short-circuited by imperious mayors or condescending judges. After all, what remains of any “democracy” if ruling-class oligarchs can, at will, impose their views without deliberation, discussion, or dissent?

CRO columnist Carol Platt Liebau is a political analyst and commentator based in San Marino, CA.

copyright 2004


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