Democracy vs. judicial fiat?

As reluctant as I am to agree with a Wall Street Journal editorial about anything, they’re right about the California Supreme Court’s ruling on the gay marriage initiative. It’s been bizarre to hear liberals suggest that the judiciary has any right to reverse the democratically expressed will of the people. If the California court had overturned Prop 8, it would have made a mockery of the entire initiative system. If we’re going to have initiatives at all — and I’m strongly in favor of them, for all the awful propositions I’ve voted against — we’d better stick by their results until the next election, or start waiting for the state courts to jump on the results of every progressive decision from here on out.

The best way to legalize same-sex marriage is to allow the people to make up their own minds on a state-by-state basis. Imposing it on the entire nation by “judicial fiat,” as the WSJ puts it, would be as self-defeating as banning it by fiat. Unfortunately, this strategy means that same-sex marriage isn’t going to pass for some time in a lot of states. But it’s only a matter of time. Society is moving fairly rapidly in the direction of total acceptance of the notion of same-sex marriage — right-wing urgency on the issue doesn’t mean that liberals are on the verge of forcing gay marriage on an unwilling electorate, but that the electorate is on the verge of turning its back on a right-wing policy.

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3 Responses to “Democracy vs. judicial fiat?”

  1. morsec0de Says:

    “It’s been bizarre to hear liberals suggest that the judiciary has any right to reverse the democratically expressed will of the people.”

    Really? They’ve done it before. Whether you like the comparison or not, look at the history of the civil rights movement.

    The democratically expressed will of the people was to keep segregation and to fight mixed-marriage. Do you believe the government was wrong to go against the democratically expressed will of the people in those cases? If not, why not?

  2. Evan Lisull Says:

    There’s a curious irony in the current Battles of the Bench (oh, I went there) – “conservatives” are furious about the Ricci ruling, while “liberals” are angry about the Prop 8 ruling. Yet in both cases, the justices were exercising exactly what everyone claims to want – judicial restraint. They heard the cases, interpreted within the letter of the law, and ruled accordingly. Now, the laws – the Title VII affirmative action requirements and the ban on homosexual marriage – are abominable and should be overturned in the legislative setting. These cases should not indicate the failure of the judiciary in America, but rather the failure of legislatures.

    It looks like the SCOTUS will reverse Ricci, and probably declare this specific aspect of Title VII as unconstitutional – and good for them. Were nullification in effect, Sotomayor could be held as unnecessarily supporting these aspects. As it is not, the best thing she can do is to interpret the case in light of the law as it currently stands.

    Frankly, I’m a huge supporter of the Court and what Tocqueville describes as the “legal aristocracy.” Of all the branches in government, it seems to be the only one that gives a shit about the letter of the law.

  3. Justyn Dillingham Says:

    The democratically expressed will of the people was to keep segregation and to fight mixed-marriage. Do you believe the government was wrong to go against the democratically expressed will of the people in those cases? If not, why not?

    The history of Jim Crow laws is more complicated than that; the vast majority of them were passed by Southern states to stifle democracy and discourage black voters from voting (as well as to encourage racism, which would discourage anyone from protesting these policies). Jim Crow laws were also blatantly unconstitutional, because they violated the Fourteenth and Fifteenth Amendments. The federal government — both the Court and the Congress — was thus fully justified in banning segregation and literacy tests.

    Same-sex marriage isn’t comparable to segregation or interracial marriage for a number of reasons (there’s no “right to marriage” enumerated in the Constitution; there’s no mass terror campaign directed at homosexuals as there was at black Americans; no one is arresting gays for cohabitating), but there’s a reason for supporting the California court’s decision beyond that. If the national Supreme Court were asked to decide the issue of gay marriage today, there’s a strong possibility — an overwhelming likelihood, in fact — that they’d side against it. Rather than see that happen, I’d prefer to let the people come around to the idea of gay marriage one state at a time.

    I’m a staunch supporter of gay marriage, but we’re deluding ourselves if we think we can change society through a judicial deus-ex machina.

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