California Marriage Decision Shows Constitutional Amendments Are Only Protection from Activist Courts

Conn Carroll /

The California Supreme Court’s decision Thursday to grant same-sex couples a fundamental right to marriage disregards voters’ 61 percent decision in favor of marriage as one man and one woman, a domestic partnership law already granting same-sex couples the benefits and privileges of marriage, and centuries of tradition and precedent–corroborated more recently by social science–that have set the union of one man and one woman apart from all other household forms.

The decision is a masterpiece of judicial activism. It is long on public policy preferences, and extremely short on law. Questions like what constitutes marriage are beyond the competence and expertise of judges. Decisions like these weaken the judicial system by causing the electorate to question the legitimacy of judicial decision-making. Just as with Roe v. Wade, this decision is troubling from three angles: on the process, on the reasoning, and on the substance.

The California court’s decision treats the push for same-sex “marriage” as the latest wave of the civil rights movement. The decision repeatedly declares that sexual orientation is just like race or ethnicity, and traditional views about marriage are the new racism. If the other branches of government aren’t moving fast enough to enshrine this new “civil right” and combat this new “discrimination,” then the courts will have to do it for them, just as in Brown v. Board.

The decision shows this isn’t about “fairness.” It isn’t about health care benefits. It’s about officially elevating homosexual relationships to the unique status of marriage. Across America, proponents of official recognition of same-sex relationships appealed to tolerance and fairness. But the California decision reveals that the push for same-sex “marriage” is not about giving same-sex couples the same health-care benefits and hospital visitation rights that married couples have. The State of California already gave same-sex couples all that. Instead, the California decision reveals that the push for same-sex “marriage” is about overthrowing cultural norms that have properly set marriage between one man and one woman apart from other household forms on the basis of tradition, legal precedent, and social science evidence.

Changing the definition of marriage has vast cultural consequences, including religious liberty implications. When the Massachusetts Supreme Judicial Court invented a version of same-sex “marriage,” the decision had a ripple effect that significantly affected Massachusetts civil society—including forcing Catholic Charities out of the adoption business, because of their religious objections to placing children with same-sex couples. Because the California court changed the legal norm to make same-sex “marriage” a fundamental right which the state is obligated to protect and enforce, it will be illegal, a violation of people’s rights, to treat same-sex “marriages” as different from traditional marriages. This will alter daily life from innumerable angles.

The activist California Supreme Court’s decision creating a constitutional right to same-sex “marriage” was a bad decision. Usurping the question from the political branches–which in California had been willing to compromise concerning domestic partnership for same-sex couples–the Court creates an all-or-nothing question that can no longer be answered by ordinary political means. The decision makes it all the more likely that California will ban same-sex “marriage” by means of state constitutional amendment this fall to take the issue back from the hubristic judiciary.

The California decision shows that constitutional amendments are vital to the protection of marriage. California already had a law defining marriage as between one man and one woman, but the state Supreme Court brushed it aside, claiming that the law violated the state constitution. State constitutional amendments can prevent similar acts of judicial imperialism.

Stay tuned for more: In the fall of 2008, voters in Arizona and Florida will be considering constitutional amendments to defend marriage. Connecticut’s state supreme court is expected to hand down a decision on a same-sex “marriage” case soon. Given the importance of California, this decision is likely to have reverberations in November in contests from local offices to the Presidency.

For more Heritage research on the importance of marriage and responding to threats to it, see:

Matthew Spalding, Ph.D., “A Defining Moment: Marriage, the Courts, and the Constitution

Edwin Meese III, “Marriage Amendment Protects Federalism

Jennifer Marshall, “Marriage: What Social Science Says and Doesn’t Say