The
California State Supreme Court shocked the nation when it decided to
overturn California law and legalize same-sex marriage. In
California, not only has the law traditionally held that marriage is
only to be between a man and a woman, but the voters reaffirmed that
understanding with a ballot initiative that passed with 60 percent
of the vote.
Other than the ballot initiative, nothing had changed in
California law to prompt such a ruling. Five justices had previously
ruled San Francisco’s attempt to issue marriage licenses invalid,
waiting for the cases to work their way through the system before
ruling on the constitutionality of the issue.
In an interview with the Los Angeles Times, Chief Justice Ronald
George gave a lengthy explanation of how he came to his decision to
be the surprise vote for a 4-3 majority in favor of legalized
same-sex marriage. When asked whether Californians would accept his
ruling, he replied, "I really don’t know."
It is unlikely Californians will accept the court’s ruling.
Already there is a movement to amend the state constitution via the
referendum process. The amendment is likely to be on this November’s
ballot.
It makes George’s decision all the more puzzling. George told
the Los Angeles Times the reason he originally voted to void the
marriage licenses issued by San Francisco is because he didn’t
want the couples involved to be "in limbo" while the court
considered the constitutional questions. Yet surely they’re in
limbo while they await the election results this fall.
California’s Republican Gov. Arnold Schwarzenegger has taken a
strange position in all of this. When the state legislature
(controlled by Democrats) sent him bills to legalize homosexual
marriage, Schwarzenegger vetoed them. Now that the court has ruled
in favor of legalized same-sex marriages, Schwarzenegger supported
the court ruling and has promised to fight any proposed
constitutional amendment to overturn the court’s ruling.
What Schwarzenegger seems to be advocating is rule by judges,
oligarchy, and not rule by democratic principles.
So we have a state supreme court that issued a ruling that has no
precedent and no basis in the law except the whim of four members of
the court. It’s counter to the will of the public, and is likely
to be overturned in due course. And in support of this temporary
usurpation of power by judicial activism, the Republican governor.
Caught in the middle of this political game are the very people
whose rights Justice George and Governor Schwarzenegger claim to be
defending.
Fortunately in Wisconsin we avoided this chaos. In 2006, voters
chose to amend the state constitution to declare marriage is for one
man and one woman.
We were told at the time that this was unnecessary, that marriage
is already one man and one woman under Wisconsin law. Of course,
there were lawsuits already in the works to overturn that
understanding of the law.
By amending the constitution, Wisconsin voters removed the
possibility the courts would be equally activist here in expanding
the definition of marriage. We do not have to fear that Wisconsin
will be forced to recognize same-sex marriages by other states as
well.
With the election of Justice Michael Gableman in April, the court
is now firmly in the hands of justices who understand the proper
roles of the courts and the legislature. Any attempt to overturn
Wisconsin’s law on the definition of marriage will have an
impossibly high bar to jump.
For all the talk of how awful the last two Wisconsin Supreme
Court races were, they were not nearly as corrosive to the public
confidence in the courts and our political system as the judicial
activism in California. The political left and the so-called
"good government" types can complain about how messy
electing judges can be, but removing government from the hands of
the people to the whims of four people in black robes can only
undermine the public faith in our government.
So not only does our cheese taste better than California’s, our
courts work better than theirs, too.
(James Wigderson is a blogger publishing at http://wigdersonlibrarypub.blogspot.com
and a Waukesha resident. His
column runs Thursdays in The Freeman.)