Thursday, November 6, 2008

Voters and marriage: The people have spoken - again

This excellent article came to me via email - it's originally from the Wall Street Journal:

On the same day that Barack Obama carried California by 24 points, the state's voters nonetheless amended its constitution to define marriage as between a man and a woman. Late yesterday Proposition 8 was ahead 52% to 48% with 95% of precincts reporting.

This is a big event -- less for the merits of gay marriage than as a statement about democracy. In a referendum in 2000, 61% of California voters had voted to bar same-sex marriage in the state. But in a raw display of judicial power, a 4-3 Supreme Court majority erased that referendum by declaring in May that same-sex marriage was protected by the state constitution. So opponents of gay marriage had to return to the electorate to amend the state constitution. One of the more effective TV ads contrasted the millions who voted for that proposition in 2000 with the four judges who chose to impose their cultural will. And this is California, where the media portray anyone who opposes gay marriage as a bigot or yahoo.

Similar amendments also passed in Florida and Arizona Tuesday, bringing the number of states that have done so to 30. Arizona voters had defeated a similar measure two years ago, but it passed this year 56%-44%.

Clearly many of the voters who came out for Mr. Obama also voted for the gay marriage ban. The marriage amendments outperformed John McCain by 14 points in Florida and 15 in California. So what changed? The fact that two state Supreme Courts declared same-sex marriage a constitutionally guaranteed right this year -- California in May and Connecticut in October -- no doubt played a role in pushing the Florida and Arizona measures over the top.

All of which is a warning to the Obama Administration as it bids to seed the federal courts with judicial liberals. Mr. Obama says he opposes gay marriage, but he also opposes the 1996 Defense of Marriage Act that says states needn't honor same-sex marriage laws in other states. Opponents of that law, which was signed by Bill Clinton, are hoping Mr. Obama will appoint judges who will declare it unconstitutional.

Tuesday's vote shows that's a risky strategy. Instead of trying to impose gay marriage by judicial fiat, perhaps some democratic persuasion is in order. Same-sex marriage was not a divisive political issue until courts legislated it from the bench.

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