"One Man, One Vote"--California Style

On Monday, a California trial judge upheld gay marriage (In re Marriage Cases decision, in .pdf, here). Judge Richard Kramer of San Francisco County upheld the validity of thousands of marriages performed by the SF Mayor in celebration of a similar holding 3,000 miles away in Massachusetts. Judge Kramer's rationale is a minor variation on Dr. Strangelove--decisions are too important to be left to the people:

At issue were a 1977 law that defined marriage as "a personal relation arising out of a civil contract between a man and a woman," and a voter-approved measure in 2000 that amended the law to say more explicitly: "Only marriage between a man and a woman is valid or recognized in California."

According to the opinion, the equal protection guarantee (Art. I, Sec. 7(a)) of the state Constitution (dating from 1879) applies to sexual preference and thus trumps the legislature (Section 300) and the voters (Section 308.5)). Opponents of gay marriage said they had expected the result in a San Francisco courthouse, but were optimistic the decision would be overturned on appeal. So is UCLA Law teacher Eugene Volokh: "Given my sense of the California Supreme Court's moderately conservative (generally speaking) jurisprudential philosophy, I think the court is likely to hold that the opposite-sex-only requirement is indeed constitutional."

Like earlier rulings in New York and Massachusetts, the decision is a fraud, substituting a Judge's politics for the will of the voters and their elected representatives. It also warps Constitutional and statutory provisions into unrecognizable vessels large enough to hold the flavor of the month, every month, in perpetuity. Because California's people, and their representatives, explicitly prohibited gay marriage a few years ago, the court had to reach back and claim the 126 year old Constitution foresaw and forbade statutory heterosexual qualifications for marriage today. Were there a federal question, I have no doubt Justice Kennedy would declare the three opinions evidence of "the evolving standards of decency that mark the progress of a maturing society," Roper v. Simmons, Slip Op. at 6 (Mar. 1, 2005), and federalize same-sex marriage.

As NRO's John Derbyshire wrote last year:

With recent events in Massachusetts and California, homosexual marriage — an idea that seems not to have occurred to anyone at all in the entire span of human history until about five years ago — is now a daily topic in our newspapers and TV programs.

Gary at Right Pundit says:

[B]efore the last decade or two of the 20th century, not one civilization in the history of the world that I am aware of recognized homosexual couples as a family. Yes, some civilizations tolerated and even accepted homosexual lifestyles more than others.

Yet suddenly, judicially-imposed gay weddings are the left's latest sine qua non; a litmus test of liberalism.

What's the rush? Surely five years isn't sufficient to radically change an institution as old as civilization itself. Shouldn't we consider the potential consequences, especially unintended consequences? After all, an unintended consequence of the 60s-70s sexual revolution increased the percentage of one-parent families four-fold. What might further tinkering produce?

Most importantly, debate and consideration of such issues is exactly what the democratic process does best. Marriage is primarily a state issue (with an important exception). The state legislature drafts bills after testimony, hearings and studies. Bills become law when passed by a majority of the legislature (and in California, by direct referenda). That's democracy. That's "pro-choice" as well. So why are judges left, lefter and leftyist hostile to one man, one vote? Judge Kramer's ruling disenfranchises the entire California electorate (over 13 million Californians voted last November). Rather than "count every vote," the San Francisco Judge took the role of "one man" then counted his own "one vote."

Sign me on to Kevin's one line conclusion on Wizbang: "Judicial activism - it's whats for dinner..."

(via Right Pundit)