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In Praise of Democracy

Give this Washington Post writer credit for candor:

The ruling Tuesday by California’s Supreme Court upholding a ban on same-sex marriages shows that, despite a year of successes for gay activists, the road toward full marriage rights remains difficult — particularly when voters are given a direct say.

Yeah, if it weren’t for darn voters the march of progress would go more smoothly.

The decision is remarkable in its clarity: the Court held that the people of California through its system of referenda have the ability to decide for themselves to reject creation of a new right. It is, at its core, a reaffirmation of the right of self-government and a rejection of the invitation to go hunting about for a theory by which to invalidate a controversial measure. The vote was 6-1.

None of this goes to the merits of gay marriage. That’s an issue to be decided by the people of California and the other forty-nine states, several of which have or are recognizing same-sex marriages. We have seen in a number of other states that when utilizing the democratic process, advocates of gay marriage can convince their fellow citizens of the merits of their cause. And the opponents of gay marriage are free to make their case and persuade their fellow citizens of its merits. The potential for debate, compromise, and resolution can proceed.

This, it seems, is the preferred course for those favoring gay marriage — or any other social policy. The mistake abortion rights advocates made (confessed to in moments of candor even by Ruth Bader Ginsburg) was to constitutionalize a hot-button issue and remove it from the public square. The result was resentment, a natural byproduct of courts usurping the normal democratic process.

There is some irony in the California decision being issued on the same day as the nomination of Sonia Sotomayor. The degree to which she supports letting the people rather than the courts decide controversial issues is a topic worth exploring. And for advocates of judicial restraint, the opinion is one worth studying and explaining as an example of the division between judging and legislating. The timing could not have been more poignant.


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