Gay Marriage and the California Courts

Democracy loses if Prop. 8 is overruled.
By WILLIAM MCGURN

If it walks like a culture war, squawks like a culture war, and has all the ugliness of a culture war, surely it is a culture war -- right?

APMaybe not. It's true that we've seen some wild things in the days since California voters approved Proposition 8 -- a measure on the state ballot prohibiting same-sex marriage. We've had the burning of the Book of Mormon. The mailing of envelopes filled with white powder to Mormon temples. And activists marching on Mormon churches with signs and shouts of "hate" and "bigot" directed at anyone who might have a difference of opinion.

In modern America, of course, these acts all come under the banner of "tolerance." And it's interesting that all those so outraged by the alleged disrespect toward the Quran shown by Guantanamo prison guards (the most sensational report was later retracted by Newsweek) appear unperturbed by the ugliness directed against our Mormon brothers and sisters. The temptation can be to saddle up the horse and ride out to take one's assigned place in the Great American Culture War.
Except for one little thing. What we have in America is less a culture war than a constitutional war. And if we could just straighten out the latter, we'd go a long way toward diffusing the former.

That much has become clearer in the wake of last week's decision by the California Supreme Court to review the legality of Proposition 8. In California, gay Americans have marriage in all but name -- which many Americans might think a pretty reasonable compromise. But courts tend to think in absolutes -- and when they intervene, woe unto the losing side.

The great achievement of our system was to create a political order where these great moral disputes, as a matter of policy, are left to the people -- with allowance for differences according to region and locale. Moral agents have a role to play, generally by shaping the larger culture in which these decisions are framed and debated. But the outcome is left to the people acting through their elected representatives, a process that inevitably involves compromise, trade-offs and messy accommodations.

These political accommodations can be thought illogical or even corrupt by those focused solely on the moral. Partial-birth abortion is a good example. In the moral sense, surely the humanity of an unborn child is not affected by whether he or she happens to be aborted inside the womb or, a few minutes later, outside the womb. And gay-rights activists see no moral difference between two men who want to get married and the traditional male-female couple making their walk to the altar.

What people hold as a moral ideal, however, and what they will accept as a workable compromise are two different things. Left to their own devices, most Americans can work these differences out in politics much as they do in their everyday lives, as untidy as these solutions may be. Unfortunately, when the courts short-circuit this process, they do three things corrosive to our politics.

First, they act as dishonest referees, imposing one set of preferences over another.

Second, they cheat the American people of an honest political contest, where candidates need to persuade the people of their views to put them into effect. Ed Whelan, a former Justice Department official who now runs the D.C.-based Ethics and Public Policy Center, notes that when moderator Gwen Ifill asked Joe Biden in the vice-presidential debate whether he and Barack Obama support gay marriage, Mr. Biden answered, "No."

"The gay-rights activists know it's not true -- or they would be protesting," says Mr. Whelan. "As supporters of liberal judicial activism, Mr. Obama and Mr. Biden have the luxury of winking as the courts do their work for them. That leaves them free to pretend to public positions they do not actually hold -- and that they will subvert through their judicial appointments."

Finally, when courts usurp the role of the people, they inject cynicism and bitterness into America's body politic. In his dissent in Casey v. Planned Parenthood (1992), Supreme Court Justice Antonin Scalia put it this way: "[B]y foreclosing all democratic outlet for the deep passions this issue [legalized abortion] arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish."

Plainly this is what we have seen with abortion. With the latest intervention by the California Supreme Court, it is beginning to look the same for same-sex marriage. How much healthier our politics would be if those so convinced of the rightness of their views would have equal faith in the decency of their fellow Americans -- and their openness to being persuaded by clear, fair and honest argument.