A Constitutional Right to Gay Marriage? A Foolish Delusion Indeed

As my opening salvo I have decided to rant about today's big news from good 'ole California. Let me preface by saying that I do not take moral or personal issue with gay marriage here. As Senator Goldwater himself said, "there is no gay exemption to the right to life, liberty, and the pursuit of happiness." Instead, I lament the legal implications of judicial activism.

In my first year constitutional law class, our professor quipped as a matter of factly that when we as law students consider who to vote for in the next presidential election a primary consideration will be the candidate's judicial philosophy and his promise to appoint judges who embrace a particular school of judicial interpretation. The class erupted in sarcastic laughter, as in “No we won’t. Who cares? Remember? It's the economy stupid."

Obviously, it was early in the semester and many classmates, myself not included, had not yet realized how influential the U.S. Supreme Court’s opinions are on society. The Court’s primary (and only) role is to interpret the U.S. Constitution and say what the “law of the land” is. By setting the legal boundaries to which all states must comply, the Court, by way of its opinions, directs, and in certain instances, molds the public’s sense of morality. It can be successfully argued, however, that the process is reverse – that the Court adjudicates according to the changing winds of the public square. This argument is certainly not unfounded.

The California Supreme Court opinion in In Re Marriage Cases, published today, exemplifies one extreme of the judicial interpretation spectrum: Developmentalism, or as conservatives rightly call it, judicial activism. Judicial activists believe in a “living, breathing Constitution,” one that “evolves with the times.” However, there’s a twist here. Did the Court really adjudicate according to California’s changing perception toward same-sex marriage? I think not.

The Court did two things mainly. It created a new constitutional right to same-sex marriage violating the legal notions of stare decisis. Most damagingly, however, it “short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values."

The precedent upon which the court in California was bound is unambiguous. According to Glucksberg, the seminal U.S. Supreme Court case dealing with constitutional rights, a two-step analysis must be used to determine whether an asserted right or liberty interest is fundamental. First, the court looks at the “careful description” of the asserted fundamental interest. Then the court examines whether that interest is “deeply rooted” in the American legal tradition. The second prong is admittedly a high standard, arguably insurmountable. If a party asserts a “new” right, then, by definition, it really can’t be deeply rooted in the American legal tradition. It can be reasonably argued that the Court exhibited judicial restraint and purposefully created a high standard to discourage the wanton assertion of new rights.

There is nothing in our Constitution that provides for a right to same-sex marriage. Moreover, applying the second prong of the Glucksberg’s framework, any layperson unschooled in constitutional law knows enough to know that it is heterosexual marriage that is deeply rooted in American tradition, not same-sex marriage. To conclude otherwise would be a foolish delusion. Only one other state, Massachusetts, misguidedly recognizes a fundamental right to same-sex marriage. Applying this logic, a skeptic may argue then that our society would be static. No change, nor progress. Here, my discussion turns to the main thrust of my critique of In Re Marriage Cases.

We live in a republican democracy. According to the Tenth Amendment to the Constitution, the power to create a new fundamental right not provided for in the Constitution lies with the people of each and every state. In 1977, the California state legislature banned same-sex marriage. In 2000, Californians voted to maintain marriage as a civil union between a man and a woman (although, since then, a marriage and a civil union, in terms of legal benefits, have become nearly identical, leaving the issue to a mere semantic difference). Notwithstanding this clear mandate, the California Supreme Court today struck down the state laws and ruled that the right to same-sex marriage was fundamental, ergo, constitutional. The Court exhibited the worst kind of judicial activism. It not only legislated from the bench, but it legislated against the desires of the people.

It is certainly possible that the public’s perception has changed since 2000. It is possible also that if the same referendum was held today, the outcome would be different from that of 2000. But the troubling point is that the California Supreme Court usurped the law-making power of the legislature, and by doing so, violated the separation of powers and ran roughshod over the constitutional right to a republican form of government of 36 million Californians. The question going forward is whether this case makes it up to the U.S. Supreme Court. If it does, how will that Court rule? The clear danger is that it will end up as Roe v. Wade part duex, another monstrosity in the corpus juris.