I’m sure it comes as no surprise to anybody that I was pleased by Judge Vaughn Walker’s decision last week striking down California’s Proposition 8 and clearing the way for gay couples to enjoy the questionable benefits of marriage to the same extent as straight couples. As I’ve written in the past, the maid of honor (title by his own insistence) at my wedding was a gay friend of my wife (and an all-around decent guy), I have more than a few gay and lesbian friends, and I see no particular reason why they should be denied access to the many legal niceties, conveniences and (occasionally) pitfalls that come with obtaining a government-issued license recognizing a supposedly private relationship.
Frankly, by allowing the government to tie so many bells and whistles to state-sanctioned marriage, the public made it inevitable that many people beyond the originally intended audience would not just want, but need access to that official seal of approval. Holy matrimony be damned, it’s about inheritance, joint bank accounts, common property and the simple decency inherent in being allowed to make hard decisions after an unexpected summons to a hospital bed. Mixed-race couples wanted (and got) access to state recognition for their marriages first, and now same-sex couples want (and are getting) the same thing.
But I’ve written about that before. For a change, let’s take a gander at the reaction to Judge Walker’s ruling.
“Unelected judge” is the critical phrase most commonly leveled at the San Francisco-based Reagan appointee (along with charges that the allegedly gay jurist is just defending his own). Having lost the legal battle (so far), social conservatives have now become rabid majoritarians, advocates of 50% + 1 as the ultimate arbiter of what’s right and proper. Suddenly, National Review’s Rich Lowry is arguing, “let’s stipulate that Judge Walker is right. In that case, he and like-minded people should come up with, say, Proposition 9 overturning the ban and persuade 50.1 percent of Californians to support it.”
Uh huh. And Lowry has the same take on the recent decision in McDonald v. City of Chicago (PDF), voiding that city’s handgun ban, right? Overturning that law was judicial overreach, too, wasn’t it? Or is that different?
Look, a lot of terrible violations of liberty and equality before the law can be very popular, including various types of discrimination, bans and restrictions of all sorts, censorship of speech critical of charismatic politicians, ad nauseum. Pretty much any type of authoritarianism is capable of commanding the support of the majority given the right time and place for a poll. Care to guess how a national referendum on the Fourth Amendment would have turned out in the aftermath of 9/11? The founders had a lot of faults, but a lack of awareness about the flaws of majority rule wasn’t one of them. That’s why they were so critical of democracy and put in place restrictions on what the people and their representatives can do.
With his decision, Judge Walker exercised a 21st-century implementation of the long-established power of the judiciary to rein-in the power of the state, even when that power is exercised directly by the majority. In truth, individual rights and limits on state power, and the enforcement of those rights and limits by the judiciary, are fundamentally anti-democratic. And that anti-democratic tradition is a good thing.
A majority of California voters tried to ban the extension of the legal rights attached to state-sanctioned marriage to a group they don’t like — an overt exercise in discrimination. Judge Walker said no. Democracy may have lost in that contest, but liberty triumphed.
Now, if you want to discuss why the government is involved in marriage at all …