'This Is Where the Systematic Killing Took Place': 200 Days of War From...
Hamas Publishes Proof of Life Video for American Hostage
Watch Biden Lose the Battle With His Teleprompter Again
Thanks, Biden! Here's How Iran Is Still Making Billions to Fund Terrorism
Trump Not Sending His Best
Current Thoughts on the Campaign
UnitedHealth Has Too Much Power
Former Democratic Rep. Who Lost to John Fetterman Sure Doesn't Like the Senator...
Biden Rewrote Title IX to Protect 'Trans' People. Here's How Somes States Responded.
Watch: Joe Biden's Latest Flub Is Laugh-Out-Loud Funny
Hundreds of Athletes Urge the NCAA to Allow Men to Compete Against Women
‘Net Neutrality’ Would Give Biden Wartime Powers to Censor Online Speech
Lefty Journalist Deceptively Edits Clip of Fox News Legal Expert
Is the Marist Poll a Cause for Concern?
A Swiss Air Jet Nearly Collided With Four Planes at JFK Airport
OPINION

Same-Sex Marriage Needs Voters' Stamp

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.
Advertisement
Advertisement
Advertisement

As a conservative with gay friends, nothing would make me happier than to watch Californians pass an initiative to legalize same-sex marriage -- preferably with protections for religious objectors. Polls suggest it would pass today. Then the issue would be settled, and Californians -- not a court in Washington -- would have determined their own marriage laws.

Advertisement

So of course I was interested when 100-plus conservatives filed a friend-of-the-court brief in support of a legal challenge to Proposition 8, the California constitutional amendment supported by 52 percent of voters in 2008 that limited marriage to a man and a woman. The case is before the U.S. Supreme Court.

Former Republican National Chairman Ken Mehlman tops the list of court "friends." As a gay Republican, the issue is dear to him. The conservative friends include former elected officials, Republicans who lost recent elections, right-leaning commentators, political consultants and one standout -- a sitting member of Congress, Rep. Ileana Ros-Lehtinen of Florida. (You can see the full list at http://blog.sfgate.com/djsaunders.)

"I strongly believe that marriage for all Americans is a fundamental right," Katie Biber, a Romney 2012 campaign attorney and a signer of the amicus brief, explained to me. "There is no rational reason, no legitimate reason, to limit marriage rights to opposite-sex couples."

The amicus brief makes a strong conservative case for same-sex marriage. Marriage promotes stable families. Conservatives like strong families. Ditto "limited government and individual freedom." Perhaps to establish its conservative bona fides, the brief cites legal opinions dear to the right, such as the U.S. Supreme Court's Citizens United ruling and a law journal article co-written by former George W. Bush administration attorney John Yoo.

Advertisement

But the brief veers left, argued Yoo -- a University of California, Berkeley law professor -- by pushing for a court-imposed result: "It would be a mistake for the Supreme Court to use this case to basically cut off the political process and impose its own view on a moral and political question that is very divisive." The savvy conservative believes in states' rights and voters' right to choose their marriage laws.

The amicus brief also quotes Barry Goldwater, who once said, "The Conservative's first concern will always be: Are we maximizing freedom?" To which Yoo responded, "In a democracy, a major freedom is that you get to decide the policies you live under." When the Supreme Court steps in, it takes away that freedom.

"I think (marriage) is such an important, fundamental constitutional right," Biber countered. "I don't think it should have to wait."

I've heard that before. The problem with that approach, Yoo noted, is that same-sex marriage advocates had better be right about a freedom not explicitly mentioned in the Bill of Rights. If they're wrong, they've set back their cause.

Advertisement

Yoo, too, believes that most states will enact same-sex marriage laws, and those laws will be politically more secure. "If it's decided by the court, it will be like Roe (v. Wade)," said Yoo, forever "one justice away" from being overturned. What the Big Bench giveth, the Big Bench can taketh away. But if voters pass a same-sex marriage law, it will stand, because the people have willed it.

Join the conversation as a VIP Member

Recommended

Trending on Townhall Videos