Checkmate!

Checkmate!
Ken Connor
Sunday, May 31, 2009

The California Supreme Court's decision to uphold Proposition 8 signifies a major victory, not only for the people of California and for proponents of traditional marriage, but for the democratic tradition as well. With Proposition 8—a constitutional amendment defining marriage as between a man and a woman—Californians demonstrated their refusal to be bullied by the bench; they harnessed the power of the ballot box to reverse a flagrant act of judicial activism.

It all began in 2000 when, to eliminate any legal ambiguity, California voters passed Proposition 22, which added a provision to the state civil code explicitly defining marriage as a civil institution between a man and a woman. Governor Schwarzenegger, himself a supporter of gay marriage rights, twice upheld the constitutional validity of Proposition 22 (and thus, the will of the electorate) by vetoing legislative attempts to legalize gay marriage. Sadly, San Francisco Mayor Gavin Newsom proved incapable of such restraint. In 2004, he decided that his personal feelings about gay marriage trumped the law and began illegally issuing marriage licenses to gay couples in the city.

Enter the California Supreme Court. It ordered Mayor Newsom to stop issuing marriage licenses to gay couples in violation of current law, but also suggested that supporters of gay marriage seek a remedy by challenging the constitutionality of Proposition 22 in court. Homosexual activists heeded that suggestion and a judicial challenge made its way back to California's highest court. On May 15th, 2008, in an act of blatant judicial activism, the justices declared Proposition 22 unconstitutional, based upon their own definition of marriage and a twisting of the provisions of the California Constitution. Their ruling opened the door for the "marriage" of tens of thousands of gay couples, notwithstanding the clear definition of marriage adopted by the majority of Californians.

When judges take it upon themselves to exceed the bounds of their office and usurp the role of the legislative body (and that of the people in guiding it), they are guilty of legislating from the bench. When they create new legislation by stripping the Constitution of its original intent and reinterpreting it to create new "fundamental rights," they are engaging in rank judicial activism. When they hold themselves up as barometers of political correctness and sociocultural "empathy," they eschew the integrity of the bench in favor of the romance of the activist. In doing so, they abandon their rightful role and undermine the respect with which our courts should be viewed.

Well everyone has their breaking point, and for the citizens of California that point had come. They were mad as hell and decided they weren't going to take it anymore. In dismissing Proposition 22 as unconstitutional, the California Supreme Court sent a message that their own views—the views of a small group of elite lawyers—trumped the will of the people. Thankfully, the citizens of California refused to tolerate this savaging of their constitutionally-protected rights. By majority vote, they amended the California Constitution, thereby overturning the court's wrongheaded decision. It was the equivalent of a constitutional checkmate. And this time the court, having been duly admonished, was all but forced to defer to the will of the people.

Supporters of same-sex marriage are, as expected, crying foul. Having cast same-sex marriage as the civil rights issue of the decade, they view the Court's decision to uphold Proposition 8 as a gross abridgment of civil rights. The chronology of bad jurisprudence that has led to the notion that there exists a fundamental "right to marry" is too convoluted to address here, but the larger point is that it is not the court's place to make law.

America's founders—knowing that concentrating too much power in any one branch of government would lead to despotism—took great care to separate the powers of government into three distinct, co-equal branches. These branches were intended to act as checks and balances on one another. This model was emulated by the states. Consequently, in America, voters elect legislators to make the laws. The executive branch is responsible for enforcing the laws; the court's role is merely to interpret them. Sadly, over the course of time, judges have usurped powers which do not rightly belong to them. Meanwhile, the legislative and executive branches have stood idly by, abdicating their responsibility to act as checks and balances. As a result, the judiciary has become "more equal" than the other branches.

But there is an important lesson to be learned from California's experience: The Democratic process still works—if the voters will use it. Proposition 8 worked! The people of California understood that political power is reposed in the people. They understood that if the other branches refuse to act to check errant judges, the people must.

Americans concerned about the abridgment of their rights at the hands of out-of-control judges should look to California's triumph as an example of what is possible when the people are willing to roll up their sleeves and do the hard work of defending democracy. Americans could do with a remedial civics lesson, so they can relearn that the purpose of the franchise is to serve as a check against the unbridled abuse of government power. Time and again, a majority of the American people have affirmed the importance of traditional marriage. It is not the court's role to question this affirmation, and it is not their place to create laws to advance their personal views about what social "justice" should look like.

The people of California have put their Supreme Court on notice that they will not tolerate activists on the bench. Hopefully, the rest of America will follow suit.


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