Schwarzenegger: I Lost the Gay Marriage Case. Now Go Implement the Winners’ Position as Quickly as Possible
It’s a wonderful illustration of one of the problems of deciding culture war issues by litigation:
California Gov. Arnold Schwarzenegger, who twice vetoed legislation that would have legalized same-sex marriage, has surprised gay rights supporters by urging a federal judge to allow gay couples to resume marrying in the state without further delay.
Lawyers for Schwarzenegger, Attorney General Jerry Brown, two gay couples and the city of San Francisco all filed legal motions Friday asking Chief U.S. District Court Judge Vaughn Walker to implement his ruling striking California’s voter-approved same-sex marriage ban as unconstitutional.
. . . .
The governor and attorney general almost always defend state laws when they are challenged, regardless of their personal views. But in this case, both Schwarzenegger and Brown refused to participate in fighting the lawsuit aimed at overturning the ban, even though they both were named as defendants.
This simply underlines the problems inherent in a process that allows judicial decisions to reverse the will of the people regarding controversial social issues.
Proposition 8 was fully debated by the citizenry of the most populous state in the union. Seven million voters approved Proposition 8 in their collective wisdom. I happen to disagree with them, but I would never propose that my single vote should cancel those of seven million of my fellow citizens.
Some argue that this is exactly what is supposed to happen in our constitutional system. A law must withstand the test of constitutional scrutiny, which means taking it to court. Which means the single vote of a judge can and should negate the law if it is unconstitutional.
And that is undoubtedly true. It makes sense when a judge is deciding, for example, whether a particular piece of legislation runs afoul of our First Amendment jurisprudence. But in our equal protection jurisprudence, the issue often comes down to whether a law has a rational basis. And a judicial inquiry ought to tread very lightly when the nature of the inquiry is whether a law is rational.
Instead, Judge Walker trampled all over the issue with elephant feet, willy-nilly issuing pronunciamientos regarding the proper role of tradition in deciding the legality of gay marriage, and couching these edicts as “factual findings.”
This sort of inquiry is far more suited to decision through the collective wisdom of millions of voters, debating a topic in public — rather than in a courtroom, litigated by two sets of parties who (as Schwarzenegger’s pronouncement highlights) may actually agree with each other.
What if Schwarzenegger and Brown, rather than deciding to abstain from participation in the litigation, had decided instead to conduct it — with an eye toward losing? If this sounds far-fetched, recall if you will how a cabal of left-leaning California officials decided not to appeal an unfavorable ruling on Proposition 187 to the U.S. Supreme Court.
But the prospect of sabotage by sloppy or disinterested litigation is not the only reason that deciding such issues in the courtroom is a bad idea.
Judge Walker’s ruling was simply the negation of our vote, on a matter that should properly be decided by the People and not by an unelected judge (and no, it does not help that this particular unelected judge could benefit directly from his own ruling). I will have more to say about this in a future essay, but the concept of the negation of a vote is one I want you to remember.
A courtroom is not the place to resolve the question of whether society ought to accept gay marriage. A courtroom is not the place to decide whether thousands of years of tradition are to be given any weight in assessing whether a law abrogating that tradition is rational. I keep hearing that the proponents of Proposition 8 simply didn’t make their case in court. They should not have had to.
A courtroom is not the place to resolve contentious issues in the culture wars. It is time we recognized that.