The California Supreme Court has struck down that state’s ban on same-sex marriage. And we all know what that means: the forces of self-righteous indignation are gearing up for the mother of summer reruns. Wait for these oldies but goodies:
Judges have no business making such decisions. Um, sorry, but that’s their job. Judges are supposed to decide the cases before them, and some require deciding whether a particular law is consistent with the state or federal constitution. Judges don’t just wake up in the morning and say, gee, I feel like overturning some legislation today.
Judges should not overturn the will of the people. Failed government class, did you? In a constitutional republic, fundamental rights are not subject to majority vote. The Bill of Rights is a list of things the government cannot do even when popular majorities approve. In this case, moreover, that argument is unavailable; the California legislature—the “voice” of the people—passed same-sex marriage legislation not once, but twice, only to have Governor Schwarzenegger veto it both times. (It’s also worth noting that those on the Right who scream most loudly about respecting “the will of the people” didn’t hesitate to ask the courts to overturn the will of the people in Oregon who passed a referendum legalizing assisted suicide, or the will of the people in California who endorsed medical marijuana. Can we spell hypocrite?)
We need to elect Republicans who will put “strict constructionists” on the bench. Well, let’s see. It’s certainly true that contemporary Republicans are determined to put ideologically driven judges on the bench. And they have had some measure of success. But judges who are even minimally qualified are more likely to rule based upon controlling statutes and precedents than on their personal preferences. The California Supreme Court is a case in point: of the seven sitting judges, six were appointed by Republican governors.
And then there’s the old standard: Throughout human history, marriage has always been between one man and one woman. Well, no. In early Israel, a man could have several wives and concubines. (People who’ve actually read the bible, rather than merely thumping it, might recall the story of Jacob, who married two sisters, Leah and Rachel. Or Solomon, who had 700 wives and 300 concubines.) In America, in 1848, the Oneida community practiced “complex marriage” where every woman was married to every man in the community, and there was a so-called “Christian polygamy movement,” as late as 1994. Although Mormons have (formally) renounced it, polygamy persists in many parts of the Middle East to this day—among President Bush’s princely pals in Saudi Arabia, for example, and in Senegal, where an estimated 47% of marriages are “plural” or polygamous. There is even some evidence—admittedly disputed—that the medieval Church blessed same-sex unions.
What with Iraq, the recession, climate change, natural disasters, food shortages and gas prices, do we really have to replay these tired arguments about allowing Adam and Steve to file joint tax returns?