Court re­ver­sal of re­al­ity

The Washington Times Weekly - - Commentary - WILLIAM MURCHI­SON

Mar­riage isn’t just the chief un­der­pin­ning of so­ci­ety or, for that mat­ter, a raunchy com­edy rou­tine. In the minds of eas­ily the great ma­jor­ity of Amer­i­cans, mar­riage is an in­sti­tu­tion re­flec­tive of divine in­tent con­cern­ing hu­man re­la­tion­ships and du­ties.

Well, never mind. The Cal­i­for­nia Supreme Court doesn’t seem to mind, hav­ing ruled by the mar­gin of a sin­gle vote that Cal­i­for­nia can’t con­sti­tu­tion­ally ban same-sex mar­riage.

Um [. . .] can’t? Can’t af­firm, in a ju­di­cial find­ing, the large, his­toric, pro­foundly rooted be­liefs of the hu­man race? Seem­ingly not.

Only in Cal­i­for­nia. Or Mas­sachusetts. Or cer­tain other cut­ting-edge Amer­i­can ad­dresses not worth the trou­ble of nam­ing. There’s a ten­dency to laugh aloud at the sheer pre­sump­tion of peo­ple with law school ed­u­ca­tions in lec­tur­ing fel­low cit­i­zens on their out­moded modes of be­lief, and, cor­re­spond­ingly, on the need — Now! No back talk! — to get with the new pro­gram.

If no ju­di­cial de­cree can make mar­riage any­thing other than an in­sti­tu­tion re­flec­tive of the large re­al­i­ties in which hu­mans par­tic­i­pate, there’s no cause for alarm. Two peo­ple of the same sex hold­ing hands be­fore a judge or cler- gy­man is [. . .] two peo­ple hold­ing hands be­fore a judge or cler­gy­man, noth­ing more.

Mar­riage it ain’t. That’s be­tween peo­ple of op­po­site but com­ple­men­tary at­tributes and phys­i­olo­gies. The merger, so to speak, of those at­tributes and phys­i­olo­gies is what we call mar­riage. Flap your arms and at­tempt to try an ae­rial pas­sage across the Grand Canyon: You’ll have as much luck at that as at same-sex mar­riage. Can’t do it. Pe­riod.

The prob­lem, in Cal­i­for­nia, isn’t that you can’t do it. The prob­lem is that the state’s high­est court has at­tempted this meta­phys­i­cal heavy lift­ing in de­fi­ance both of logic and pop­u­lar sen­ti­ment.

As one dis­sent­ing jus­tice, Marvin R. Bax­ter, wrote in the gay mar­riage case, “[A] bare ma­jor­ity of this court, not sat­is­fied with the pace of demo­cratic change, now abruptly fore­stalls that process and sub­sti­tutes, by ju­di­cial fiat, its own so­cial pol­icy views for those ex­pressed by the peo­ple them­selves.”

It’s what they do in North Korea and Iran, in case we’ve forgotten: De­cide in the Peo­ple’s name what the Peo­ple need — then give it to them, to choke on, as of­ten as not.

I can’t for­bear from not­ing that John McCain promised, if elected pres­i­dent, to ap­point fed­eral judges un­will­ing to tor­ture con­sti­tu­tional or statu­tory lan­guage to se­cure par­tic­u­lar out- comes. Cal­i­for­nia’s high court, though not a fed­eral venue, demon­strates what he means.

The Cal­i­for­nia ma­jor­ity said pro­hi­bi­tion of same-sex mar­riage con­sti­tutes un­con­sti­tu­tional dis­crim­i­na­tion. Shock­ing that no one had no­ticed be­fore. All this time, the as­sump­tion that men and women had been cre­ated for each other, not least in or­der to pro­cre­ate — and no one raised a fin­ger. Not the old guys in the Bi­ble. Not Plato. Not Aquinas. Not even Norman Mailer! Up pops the Cal­i­for­nia, Supreme Court — I mean, its four-judge ma­jor­ity — to ex­plain what forever­more had been said and thought and be­lieved and prac­ticed. Gosh — aren’t judges some­thing?

Well, they are. Which is why Cal­i­for­ni­ans are be­ing asked in Novem­ber to amend their con­sti­tu­tion and so pro­hibit as a le­gal mat­ter mar­riages be­tween Cal­i­for­ni­ans of the same sex. Cal­i­for­nia’s high­est court is caus­ing Cal­i­for­ni­ans a lot of un­nec­es­sary bother and ex­pense, while stir­ring up in­tra­mu­ral ill will and set­ting an un­whole­some ex­am­ple of ju­di­cial ar­ro­gance and in­tel­lec­tual dis­con­nect­ed­ness.

Sad. Not prej­u­di­cial, ipso facto (in legalspeak) to the re­al­ity of mar­riage — which, as I say, is be­yond reach — but sad. That’s be­cause the Cal­i­for­nia Supreme Court’s im­pri­matur will con­vince var­i­ous folks that A is B and up is down. Some of th­ese folks, newly con­vinced or re­in­forced in what they be­lieved al­ready, will then op­er­ate on those as­sump­tions, with pos­si­bly tragic con­se­quences.

Why don’t judges get it? Leg­is­la­tors write law. Judges in­ter­pret what oth­ers have writ­ten. Any­way, a na­tional elec­tion com­ing up. The Cal­i­for­nia Supreme Court, with­out know­ing it, just put on a heck of a fund-raiser for John McCain.

William Murchi­son is a na­tion­ally syn­di­cated colum­nist and se­nior fel­low of the Texas Pub­lic Pol­icy Foun­da­tion.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.