Oh, Fabulous…

Well, California has managed to follow Massachusetts’ example and legalize gay marriage by judicial fiat. The judges of the state’s Supreme Court have decided that yeah, people have the right to marry partners of the same sex if they so choose.

I’ve repeatedly stated my support for gay marriage — I just don’t see the harm in it, and think that it would promote more stable couples and families, which would be a net gain for society — but I am not happy about this development. And it’s for both ethical and pragmatic reasons.

Ethically speaking, I don’t like it when courts get involved in making laws. In our system of government, the role of the courts is to interpret the law and the other essential documents, and to enforce principles and rights by striking down unjust laws when necessary. And no matter what kind of semantic games anyone should choose to play, that’s precisely what is going on here — the courts in California (following the example set by Massachusetts) have created a right where none existed before.

But on a more pragmatic note, I fear that this “victory” will end up being ultimately pyrrhic to the cause of gay marriage in the long run.

In essence, in California there were to arguing factions over gay marriage.

“We want the right to have our relationship with this person of the same sex recognized by the state, and accorded the same privileges traditional male-female marriages are given!”

“Hell, no!”

They hemmed and hawed and fought back and forth, then they finally struck a compromise:

“OK, we’ll settle for pretty much all the legal benefits of marriage.”

“All right, you can have all that, but we’re keeping the term ‘marriage’ to ourselves.”

That was fine with most people. But then the courts stepped in and said “sorry, no compromising is allowed. It’s gotta be all or nothing, and since you didn’t stand firm on nothing, the gays get everything.”

The pro-gay-marriage side was ecstatic. (See this week’s Caption Contest for some proof.) The attitude seemed to be “yay, we won! You guys now just admit you lost and go away.”

On the other side, though, the response seems to be a bit more like “it ain’t over ’till the fat lesbian sings — and no, keep Rosie O’Donnell out of this.” They’re madder than ever, and more worked-up than they had been before.

They had done pretty much everything they thought they had to in order to secure their position. They had not only gotten the legislature to pass civil unions BUT NOT MARRIAGE, they had also managed to do the same through a ballot initiative. The People had spoken, there had been a free and fair vote on the matter, and by all the rules, they had made their proposed compromise and kept up their end of it.

And then the court stepped in and threw all that in the trash.

Angry people tend to be motivated people. This issue raises the passions of many, and this move by the courts will galvanize the hell out of the gay marriage opponents. They still have many legal recourses, and they will be most likely pursuing all of them at once.

First up, they can recall the judges who issued the ruling. In California, justices can — and have been — removed from office by a popular vote, and this is precisely the kind of issue that can get enough people riled up to do just that.

They can also pursue an amendment to the state’s constitution. They’ve already done a lot of the legwork when they passed the law and the ballot initiative; the process, as I understand it, is not that dissimilar. It’s their way of saying to the courts: “you say that banning gay marriage is against the Constitution? Fine, we’ll change the Constitution!”

These kinds of victories do not, in my opinion, help the cause of gay marriage. They’re wins, yeah, but they’re seen as “cheating” wins. They don’t work from any sort of consensus or shifting of public opinion; they’re simply a couple of high officials looking down from their ivory towers and telling the rabble what’s best for them, despite what the rabble thinks — or, in this case, spent considerable time and effort doing.

In the strictest sense, it’s undemocratic. The people have been asked to express their opinion and they did so — for absolutely no reason whatsoever, apparently.

Now, the people are not always right. “The masses are asses” is occasionally true. (Witness Massachusetts.) There have to be some checks on the power of the majority.

But in the end, simple numbers can prevail in a democracy. (Or, to be pedantic, a democratic republic like we have.) There is no law, regulation, or Constitutional element that can not be overturned if enough people want to do so.

To use the example many want to use, look at slavery. It was enshrined in the Constitution as a legal institution, and the Courts backed that up — until enough people got together and amended the Constitution to abolish it. And nowadays, the very thought of slavery is abhorrent to nearly everyone — and to those to whom it isn’t, they are ostracized and regarded as lunatics and sociopaths.

Yes, there is the possibility of a “tyranny of the majority.” Lord knows we’ve seen enough examples of that around the world. But the antidote to that is not a “tyranny of the minority.” The majority have rights, and they have considerable resources to back up those rights should they feel they are being infringed.

In the end, I think that gay marriage will come to pass, and it will be at least grudgingly accepted by the majority of Americans. But it will come about not through brute-force tactics like this, but through legislation. When enough people are persuaded to shrug and say “what the hell, do whatever you want, just don’t make me have to look at it” and not told that they WILL embrace it and welcome it and put on their happy faces.

To quote someone who was the son of an American woman and who was an American by an Act of Congress, “You can always count on Americans to do the right thing – after they’ve tried everything else.”

It took me a while to get to that point, but I made it. I looked at the matter and said “hey, what’s the big deal?”

Marriage these days is a troubled institution. More and more people are not bothering to wed, instead just living together and bearing children and setting up all kinds of arrangements and legal agreements, but forgoing the actual matrimonial part. And that is, I think, a Bad Thing for society.

Opening up marriage to gays will not only widen the pool of potential couples (once you get past that whole “Adam and Steve” thing), but get a whole bunch of new folks who have a personal stake in preserving the benefits and status of marriage itself. Hell, being married could become the new “in” thing, a status symbol in and of itself.

(And for the record, no, I don’t think that allowing gay marriage opens the doors to polygamy, incest, bestiality, or any of a host of other afflictions. I have read many cogent arguments that refute each and every one of these points, but I’m already over 1200 words here already.)

So let’s do it already. But let’s do it the right way — in a way that won’t get overturned in relatively short order, but in a way that will actually last. Or, at least, let’s give it a try and see if, indeed, it does end up with fire and brimstone coming down from the skies, rivers and seas boiling, forty years of darkness, earthquakes, volcanoes, the dead rising from the grave, human sacrifice, dogs and cats living together, and mass hysteria, then we can undo it.

America is often known as “The Great Experiment.” Let’s show we still deserve that nickname.

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