Our friends on the other side of the SCMA issue have expressed their views with vigor and passion, as committed believers in any cause should. But we have to ask whether or not their desire to put the decision on the legality of same-sex marriage in the hands of the Judiciary is a wise move. James Pinkerton, in Newsday, offers some perspective on judicial intervention and voter backlash in other states.
Pinkerton notes: …"A consistent political pattern has emerged over the past four decades:
The left wins in the courtroom, and the Democrats then lose at the
…Last Wednesday the Garden State’s highest court ruled that denying
homosexual couples the same rights as heterosexual couples "bears no
substantial relationship to a legitimate governmental purpose." No
legitimate governmental purpose? A stern charge to make – that the
state government has failed to do its duty over the past 219 years.
It’s more accurate to say that a 4-3 majority on the court ordered the
legislature to do its bidding. There’s a phrase for that: "judicial
It must be said here that a solid argument can be
made that committed same-sex couples deserve societal recognition. Many
societies, across history, have made some sort of allowance for gay and
lesbian relationships. Indeed, the idea that different people, in
different places, might come up with different answers to the
gay-relationship issue fits in with the nuanced worldview of Edmund
Burke, patron saint of modern conservatism. In 1790, Burke wrote, "The
nature of man is intricate; the objects of society are of the greatest
possible complexity; and therefore no simple disposition of direction
of power can be suitable." In other words, one-size-fits-all solutions
So with an appropriate Burkean perspective,
conservatives shouldn’t get too riled up if local jurisdictions – such
as, say, the City of San Francisco – decide to carve out space for gay
and lesbian couples.
But that’s not what happened in New
Jersey. In that state of nearly 9 million people, liberal-activist
litigators went straight to the courts; they calculated, accurately,
that they would get their way with elite judges. The irony of this case
is that polls show that most New Jerseyans support civil unions, if not
gay marriage. Which is to say, if gay leaders had been willing to work
through the small-"d" democratic process, they might well have achieved
at least some of their goals.
But instead, Lambda Legal went
straight to the courts. And so the familiar pattern is likely to
re-emerge: Liberals win with judges in the short term, then lose with
voters in the long term. It’s happened before. In Vermont, for example,
the State Legislature – under pressure from the state Supreme Court –
enacted legislation providing for civil unions, which the Democratic
governor then, Howard Dean, signed into law in 2000. Whereupon the
backlash set in: That November, Republicans captured the governorship
and one house of the legislature.
That’s the predictable
pattern: Courts put gay marriage on the agenda, and then voters do
their best to take it off. Over the past six years, 21 states have
voted on the question of gay marriage, and the Republican-allied right
has won all 21 of those referenda, even in such "liberal" states as
California, Hawaii and Oregon.
At the same time, Democratic
politicians have lost. In Ohio, a referendum banning gay marriage was
on the ballot in November 2004; it passed by 1.2 million votes. That
same day, in the Buckeye State’s presidential balloting, George W. Bush
squeaked past John Kerry by just 120,000 votes. Anti-gay-marriage
coattails almost surely carried Bush to victory in Ohio and thus back
into the White House.
In fact, lefty litigation victories over
the past 40 years – most notably the U.S. Supreme Court’s 1973 Roe v.
Wade abortion decision – have cheered liberals and divided Democrats.
Which helps to explain why Republicans have won seven of the past 10
presidential elections. Many socially conservative Democrats have
abandoned a party that clearly prefers liberal lawyers to citizens
holding "reactionary" social views.
And now these ex-Democrats are being fired up, once again, by judges acting as legislators."