I start with a preemptive strike against smear merchants — those who intimidate critics of judges declaring gay marriage a constitutional right by falsely ascribing our views to bigotry. The dishonesty of that tactic is most evident in gays’ conspicuous failure to include Barack Obama among the “bigots” and “homophobes” for his publicly stated opposition to gay marriage.
If only to foreclose the use of this bigotry charge against me, I reluctantly disclose that I am not opposed to gay marriage. I am just opposed to activist judges legislating it from the bench. Bigot baiters, sorry to disappoint you.
At last year’s New Haven bar Christmas party, I chatted with gay colleagues who had read a recent column in which I railed against judicial imposition of gay marriage and who wondered why I would omit my personal views. As one stated, “Karen, it would be nice for us to see that.” I explained that separation of powers was my peeve, and my personal views on gay marriage were beside the point. I explained why I thought their strategy of using the courts would backfire on them. I think I was right.
In states that have voter initiative, activist judges had their heads handed to them. The second most watched election was that involving California Proposition 8 which (at present) appears to have passed and thus embedded in that state’s constitution a prohibition on same-sex marriage. Spending for and against it surpassed an astounding $74 million, making it the most costly campaign apart from the presidency and the most expensive social policy election in the nation’s history. The non-economic cost was worse – a nasty civil war between a state’s Supreme Court and its citizenry.
California judges thrust gay marriage on the populace by a 4-3 vote, overriding what was the public will on the issue. Angered by that outrageous act, the voters handed those four offenders a humiliating rebuke and took back their democracy.
The import of this cannot be overstated. California is the vanguard. A slap down of activist judges there is a powerful force that resonates nationwide. This nasty fight started because four judges overstepped their bounds and overruled the public on a matter of social policy. The public then overruled the judges. This revolt had less to do with gay marriage than rage over perceived judicial arrogance.
Gays also suffered devastating defeats in Florida, Arizona and Arkansas, adding to the 29 other states that bullet-proofed themselves against what they saw as the judicial tyranny of the Massachusetts Supreme Court.
In the process, the gay lobby has suffered loss of credibility, having gotten caught lying too many times. California gays denied little kids would be taught about gay marriage in school yet the public saw video of San Francisco’s defiant mayor taking kids on a “field trip” to a gay wedding. Voters heard about similar broken assurances from Massachusetts parents whose little boys came home from school talking about marrying a prince.
Florida and Arizona voters decided they, too, needed a constitutional shield against activist judges and leftist school teachers. The Connecticut Supreme Court’s Kerrigan ruling was campaign fodder. Here’s the rub.
Florida constitutional amendments require a 60 percent supermajority vote for approval. Let us assume a future cultural shift favoring gay marriage – a natural evolution, I say – and that 55 percent of Floridians are someday willing to back gay marriage legislation. That won’t do now — the law they pass would be unconstitutional. So the gay lobby, by prodding judges to legislate from the bench, ended up shooting itself in the foot.
Instead of continued reasoned discourse on the justness of gay marriage, gays redirected voters’ focus to what they think about judges who want to take the decision away from them.
In granting marriage to tiny Connecticut’s gay community, the Kerrigan majority helped set back the cause of gay marriage for millions around the nation. Justices Katz, Palmer & Company — how do you like them apples?
Karen Lee Torre, a New Haven trial lawyer, litigates civil rights issues in the federal courts. Her e-mail address is firstname.lastname@example.org.