California Voters Should Decide Definition of Marriage

By Glen Lavy | Senior vice president and senior counsel for the Alliance Defense Fund.

(This article originally appeared in the San Diego Union-Tribune, 03/05/09)

It would be hard to overstate how much is at stake when the justices of the California Supreme Court hear arguments today on the constitutionality of the marriage amendment passed last November by a clear majority of the state's voters.

For the second time in a year, the court will be taking upon itself the responsibility for determining whether centuries of moral, political, cultural and legal precedent still hold sway in the Golden State. And they'll do so knowing their decision will impact other courts and millions of citizens all over the country.

They'll decide whether marriage will be legally defined in California as the exclusive union of one man and one woman, and they'll make that decision in the white-hot glare of overwhelming media attention.

They'll decide, knowing that if they rule against marriage, the ordinary millions who approved Proposition 8 will quietly set about regathering signatures and rewriting op-eds and doing again the hard, anonymous grunt work of changing laws in a democratic republic.

They'll decide, knowing that if they throw their weight against the strong bulwark of the homosexual legal agenda, they will incur the deafening and likely (based on reactions to the passage of Proposition 8) violent reaction of those who've staked their political future on that agenda. Worse, they'll incur the withering censures of every sound bite-waving saint in the politically correct cultural firmament, from Hollywood starlets to the Obama administration.

That's certainly pressure enough, but as conscientious jurists, they must realize how much more hangs in the balance. For one thing, this court's decision will cast in sharp relief the blunt reality of the democratic process in California. Twice, a clear majority of the voters have spoken on this issue; the first time, four justices ignored their voice and stamped their own personal persuasions on the law.

So a ruling against marriage again would not just neuter the uncomfortable legal impact of Proposition 8 – it would effectively reduce every future state election to a straw poll. The Legislature has already shown itself openly hostile to the will of the electorate; the governor has turned a deaf ear to a majority of those who put him in office. Now the state's highest court will decide if the people of California have a constitutional right to amend their own constitution. At this point, the people have a right to ask: Does the government of this state exist to serve the voters and understand their will, or are the people merely the pawns of an increasingly authoritarian government?

On top of everything else, one other critical element hangs in the balance as the high court sits in consideration of this proposed amendment: the future of religious liberty in California.

The right of the individual to follow and even speak his conscience – the fundamental protection guaranteed by the First Amendment to our national Constitution – is on a collision course with those who insist that their sexual preferences be not only legalized, accommodated and promoted in the culture – but openly embraced and celebrated by all citizens, whatever their religious convictions. Things like the retaliation we saw in the wake of the Proposition 8 vote and the forcing of firefighters to march in San Diego's “gay pride parade” in violation of their consciences are just the beginning.

If same-sex unions are legitimized by the state, in no time at all any pastor, parent or teacher who presents a biblical view of homosexual behavior could be open to charges of “hate crimes.” And once that legal road is open, the way is clear for silencing any other moral conviction that those with political clout find inconvenient.

The detractors of Proposition 8 can talk all they want about killing the marriage amendment in the name of tolerance and equality. But there's no escaping the legal reality that embracing the homosexual legal agenda is a virtual declaration of war on every church that teaches the Bible and on every person who takes those teachings seriously.

Those same teachings impose on every adherent a profound personal responsibility for treating people who embrace an agenda hostile to Scripture with thoughtful love and respect, whatever their moral positions. But nothing in the homosexual agenda – and nothing in the brutally aggressive response of so many of its advocates to Proposition 8 – suggests a similar grace.

The fate of democracy, religious liberty, free elections and an independent judiciary: That's an awful lot to have riding on a single court case. But it's the California Supreme Court that saddled itself with this extraordinary responsibility – and these jurists must surely recognize the enormity of what's before them.

It will take considerably less courage for the court to embrace the thunderous applause of those pressing the homosexual agenda than to quietly preserve these quintessential elements of American law and government.

For the sake of all Californians – including those so blindly determined to radically revise that government – let us hope the courage of these judges is equal to the task.

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Read an Opposing View from Lambda Legal, "CA Supreme Court Hears Prop 8 Challenge"

Read the Opposing Views' debate, "Should Same-Sex Marriage be Legal?"