A Teachable Moment

Posted: Aug 04, 2010 10:29 PM
Few are surprised by the ruling in the gay marriage case.

It is, however, remarkable that the judge would strike Prop. 8 down on a rational basis test.  Essentially, he asserted that nothing but the desire of heterosexuals to prove their "moral superiority" over homosexuals could explain the distinction made in California between male/female marriages and gay civil unions.

That argument itself is hardly rational, given the manifold, real reasons male/female marriage has been set apart from other social arrangements across cultures and across centuries -- most notably, its unique suitability for the procreation and nurture of children (and the state's obvious interest in promoting the most beneficial social arrangement for its youngest citizens). 

What's more, a state citizenry panting to express its irrational moral disapprobation of gay relationships through the passage of  Prop. 8 would hardly have bothered to create civil unions as a vehicle for recognizing and protecting those relationships, would it? 

The case, of course, is headed to the Supreme Court.  But Judge Vaughn Walker has, in a sense, done conservatives a favor by providing a "teachable moment" for Americans about what liberal jurisprudence looks like.  Rather than anchoring any part of his decision in the intent of the Founding Fathers or any other basis in American history or tradition, he simply manipulated constitutional concepts in a way that would supply him with the policy outcome he obviously favored.

That's what "legislating from the bench" is all about.  It's what happens when judges adopt a view of the Constitution as a "living document" that changes with the times.  After all, if the Constitution has no fixed meaning, then it only means whatever the judge purporting to "interpret" it says it means at any given time.

And today's decision is a great example.  If gay marriage is to be instituted in America, it should be through the legislative process, reflecting the will of the people.  But as conservatives have long pointed out, when liberals find it impossible to enact their agenda through the democratic process, they simple turn to the courts to have it enacted by judicial fiat.