California Forum

Another View: Process used to overturn marriage laws is a retreat for democracy

In “Steady arc to marriage equality” (Forum, May 25), the author, a professor at McGeorge School of Law, measures progress as achieving an end, but ignores the fact that the means to that end has been a retreat for democracy.

Thirty-three states have passed laws protecting traditional marriage, but these laws are now being overturned or weakened by a handful of federal judges who have declared them unconstitutional, citing last summer’s U.S. Supreme Court ruling.

But in that ruling the high court never declared that the Constitution guarantees the right to gay marriage. It only ruled that the federal government must recognize all legally married couples – couples married under state laws.

Nor did it rule that states cannot preserve traditional marriage. Contrary to widespread misperceptions, the court did not rule that California’s Proposition 8, which upheld traditional marriage, was unconstitutional. It ruled only on a technicality – that despite the fact that the governor and attorney general refused to carry out their duty to defend Proposition 8, the measure’s sponsors did not have “standing” to appeal. The vote of millions of Californians was thus ignored.

No matter what one’s view of same-sex marriage, the manipulation of our democratic institutions to achieve a specific end is a dangerous precedent. Elected officials are not supposed to pick and choose which laws they will defend. This is a recipe for chaos and a trampling of liberty. Will environmental laws, tax laws and gun laws be next? And what are the implications for freedom of speech, religion and our other liberties?

The author claims, for example, that we have “progressed” from a time when those supporting gay marriage did so at their “peril,” to a time when “it is actually not OK to publicly oppose” gay marriage. He extols this as progress – citing the silencing of anyone in “Corporate America” who believes in traditional marriage, including the recent removal of the CEO of Mozilla because he supported Proposition 8.

Is this progress? Reverting to the tactics of regimes where only state-approved viewpoints can be expressed? Would the author claim such progress if a company forced out a CEO for supporting gay marriage?

This is why our founders created a “nation of laws, not of men.”

Sidestepping the rule of law, designed to protect our freedoms, in order to achieve a certain end is not progress, but retreat.