So today the Supreme Court will hear oral arguments in the
case of Hollingsworth v. Perry. Long story made short, the issue is if
Proposition 8 (California’s decision to recognize marriage as between one man
and one woman) is constitutional or not. Prop 8 was a ballot initiative which
means that it originated with the people of the state as opposed to the state
legislature. The intent of initiative was to amend California’s constitution to
reflect the preference for marriage of a man and a woman. In order for Prop 8
to even be on the ballot, those proposing it had to get ~694,000 signatures
(they really got over a million). In order to really understand the broader
picture of what this forthcoming ruling means for governmental structure in the
broad sense, one must remember that Prop 8 was a measure pushed for by the
people of California and then voted on by the people of California. In other
words the people of a state decided what their policy was going to be on a
particular issue and now the Supreme Court is reviewing the decision of the
people of California (the standard should be incredibly high to overturn state
law but that is another issue).
It is key to remove emotion from this issue. It is obvious
that gay marriage gets many people very animated but in order to preserve our
form of government, we must attempt to divorce from the emotional aspect. Let
it be known that personally, I could care less who gets married. I do not see
same sex couples being recognized by the state as any sort of threat to so
called traditional marriage. To be quite honest, I abhor any government intrusion
into this purely private institution. But, in the end, a state recognizing or
performing same sex marriages does not offend me any more or less than a state
doing the same for heterosexual couples.
But, like many other issues before the Court in recent
memory, this case is really about the ability of the people of a state to
determine their own fate. If the Court decides that Prop 8 is unconstitutional,
the Court is effectively saying that states cannot determine what their respective
policies on marriage are going to be. Conversely, it means that federal law is
going to set the standard for each and every state. This is completely counter
to the notion of the states being laboratories and testing grounds to see which
policies work and which don’t. This case, while seemingly about marriage, is a
litmus test for the health of the states’ rights versus the broadening of
federal power. The states, while being originally setup as a barrier between
the people and a national government, are increasingly being pushed into
complete irrelevancy by the federal thirst for power. If, like me, you believe
that centralized power is dangerous and must be prevented at all costs, you
have your fingers firmly crossed that Prop 8 stands no matter how morally abhorrent
you find it.
As a side note, most people who hate Prop 8 will classify
this opinion as bigoted and homophobic (just as Scalia tends to be vilified for
much the same reason). However, those in favor of same sex marriage must
realize that there is a right way and a wrong way of doing things. Taking the
shortcut of having a popular state measure overturned in a federal court, while
it may suit their goal for the short term, it will prove to be a stepping stone
in ending this Constitutional Republic for it will stand for another area of
law that is to be dictated at the federal level. Sure, when friendly forces
occupy offices at the federal level, federal law will likely benefit you (or
not harm you at the very least). But what happens when not-so-friendly folks
occupy those same offices? It is only a matter of time, the political pendulum
always swings back the other way (even in the case of Supreme Court justices).
The proper way to accomplish the goal of getting rid of Prop
8 in California is to plead your case to the people. The only way to change the
currently law in California while preserving the ability of the states to act
as a check on federal power is to get rid of Prop 8 at the state level. If you
believe as I do, that opposition to same sex marriage is not one that stands up
well to the test of time, all you have to do is have some patience and
intestinal fortitude. Do the work that is required to convince your fellow
Californians that the decision they made in 2008 was the wrong one. But please
don’t fall for the promise of a quick fix at the federal level because you will
put another brick in the ever growing wall that is the federal leviathan.
