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California, here we come…

Nowadays everyone feels entitled to their Andy Warhol-esque “15 minutes of fame.” Fairly normal people will bust a gut to get a few seconds on television. Physical harm is likely for anyone standing between a camera and blow-hard politicians desirous of hawking legislation they and everyone else know will never be enacted. The rich and vacuous, seeking to make a difference, weigh in against the world’s problems to great fanfare amidst black ties and eco-talk press conferences.


And all of them seem to be making lots and lots of money.

Now, consider the plight of the poor jurist in all this, especially appellate judges. Often a lot smarter and making a fraction of the money than the lawyers who appear before them, they labor in obscurity with only their clerks and a handful of others in the legal community appreciating their brilliance and understanding how truly important they are.

Picture them as they retire to their chambers to study some obscure point of law that nobody cares about but the litigious ingrates in the case before them. His Honor has little opportunity for grand gestures or heroic initiatives.

The judge’s job is simply to apply to the circumstances of the cases that are brought to their court the laws that have been written by lesser mortals. The job requires restraint, modesty, and reverence for the established rules of society. The judge is obliged to uphold the status quo until the people decide to change it. Where is the glory in that, for Pete’s sake?

Then, like manna from Heaven, “The Case” comes before his court – the case that can change his ignominious plight. With a few of his like-minded colleagues, he can, in effect, reshape the legal landscape, become a leader of a great cause, get the publicity equivalent to the cover of Rolling Stone, and be hailed be the mainstream press. It dawns on him that he and his buddies on the court can do things that those politicians could never achieve – things that the unenlightened, unwashed herd, otherwise known as “the people” would probably never choose to do.


Now that’s real power! That’s delivering “change we deserve.” All he and a few of his colleagues have to do is discover in their constitution a right previously unknown that has been hiding there in plain sight for about 150 years.

Ladies and gentleman, I give you the California supreme court majority and their recent opinion in the same-sex marriage complaints filed by multiple San Francisco gay couples.

On a more serious note, this decision follows “judicial lawmaking” on the subject by courts in Massachusetts, New Jersey, Vermont, and Iowa (though many other state courts have heeded their limitations), and causes supporters of the rule of law and the will of the people to rally in response. Those in California say that they will fight for a constitutional amendment. This response highlights the invidious effects of this kind of judicial activism, which reverses the way things are supposed to work in our legal system. These courts, with the stroke of a pen, are now, in effect, amending their constitutions and placing the burden of changing it back (usually a very difficult task), on the people.

Nationally, as a result of this case, there will undoubtedly be renewed calls for a federal constitutional amendment outlawing same-sex marriage. Conservatives should resist the temptation to support such a remedy. States must solve this problem for themselves. They cannot and should not be saved from themselves or absolved of the responsibility that they have, a responsibility protected against federal intrusion by the Tenth Amendment.


In the first place, playing the game of judicial activists, and leaping to the federal-constitutional-amendment remedy every time judges misread the constitution and change the law, is a fool’s errand. Passing two-thirds of both houses of Congress and three-quarters of the state legislatures has proven to be an impossible hurdle for the marriage amendment and many other proposed constitutional amendments, even when Republicans controlled Congress.

More fundamentally, the issue presented is not whether conservatives will get their way on the issue of same-sex marriage. The issue is, in our system of government, determining the appropriate place for this issue to be decided. For over 200 years marriage and related issues have been the province of state, not federal law. That is where it should remain. States, acting within their appropriate and constitutionally vested realm, should be free to have laws that even you and I disagree with as long as they do not violate established constitutional principles.

For years, legal critics clamored for federal tort reform, which for most of them meant the overriding of state law. After years of unsuccessful efforts by reformers, states finally started accepting their responsibility. State after state passed tort-reform legislation, and maintained their rights to fashion their reform measures as they saw fit with the happy byproduct of lower insurance rates and an influx of new businesses. Those states which do not act, or act unwisely, face a competitive disadvantage with other states …as they should. This is called – say it all together – federalism. It is an important part of our constitutional framework, based upon our founders’ abhorrence of too much centralized power.


So, more power to the people of California in their uphill battle for an amendment to their state constitution. But the real, long-term solution in the future for supporters of the rule of law is ensuring the selection and election of good judges, judges who know their role in a constitutional republic, in the first place, and holding them – and the politicians who appoint and confirm them – accountable.

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