Judge Richard A. Kramer of the San Francisco Superior Court issued a decision late Monday afternoon which should serve to remind us all of the most important principle from high school civics class — that the U. S. government is a republic. The powers of its federal and state institutions carefully balanced to ensure the protection of the tenets in the Bill of Rights. The current battle over the merits of same-sex marriage is raging on many different levels, and as it is currently playing out, is best characterized as a struggle of direct democracy versus judicial review — the voice of the people pitted against the good judgment of our courts. This kind of state-level legal squabble is a necessary precursor to any U. S. Supreme Court ruling and should act as a catalyst for future steps from activists and legislatures alike.
Constitutional amendments, like Michigan’s Proposal 2, are passed through a general public vote — bypassing both state legislatures and courts. Referendums on same-sex marriage, like the one recently struck down in California, are resolutions codified by legislatures and adopted into state law. The recent ruling from San Francisco concerned a Cal. referendum that defines marriage as being between a man and a woman. The law was used by California Gov. Arnold Schwarzenegger (R) to void the same-sex marriage licenses granted by the city of San Francisco. The Superior Court ruling was a result of the California Supreme Court’s decision that ordered San Francisco to stop issuing the licenses, which were in violation of state law. Kramer’s ruling today dealt not with the licenses, but the law itself — striking it down as a violation of the state’s equal protection clause. He stated, “The state’s protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional.”
Kramer joins courts in several other states in striking down legal precedents that define marriage as exclusively between a man and a woman. The abundance of state-level constitutional amendments passed in the recent November election demonstrates the courts are not following popular public opinion. They are, however, taking the constitutionally correct position — showing courage not demonstrated by most legislatures. Judiciaries across the country are fulfilling their duties as an institutional check on popularly elected branches of government. The recent ruling went as far as to challenge the California Supreme Court’s assertion that the categorization of marriage as between a man and a woman is legal as long as same-sex couples are given basically equal rights. The reasoning was even compared to the now infamous Plessy v Ferguson rhetoric of “separate but equal.”
The refusal of state legislatures and Congress to tackle the issue of same-sex marriage has opened a window for interest groups to propose ballot initiatives that hinge on confusing wording and sensationalist rhetoric to sway public opinion. One of the major reasons we elect representatives is the danger of the tyranny of the majority — the fear that unrestrained direct democracy would cause the subjugation of minority populations. With the Constitution on their side, legislators need to assume the responsibilities of their elected office, regardless of how politically inconvenient it may be.
These gains set up an important dichotomy that will come into play when more conservative states rule against it. If one state issues same-sex marriage licenses and another state refuses to accept them, the issue will have to be resolved at the national level. The subtle power play between the states, their judiciaries and the politics of placing an issue before the U.S. Supreme Court are simply more complicated manifestations of the checks and balances covered in high school civics.