Should Judges Decide Who Can Get Married?

judges gavel

In California the issue of marriage isn't being decided by couples, but by a judge.

Across the country couples face the tough decision: to marry or not to marry. But in California that decision is being left up to a judge. 

Judge Vaughn Walker overturned California's controversial Proposition 8, which banned same-sex marriages in the state of California. This ruling won't end the same-sex-marriage question—but it has exposed the fault lines over the issue of same-sex marriage. The ruling raises not only the question of whether the government should recognize marriages between gays and lesbians, but also who should have the power to decide the question.

In a nutshell, the district court found that there was no "rational basis" for Proposition 8—that the only reason that it passed was out of animus towards gays and lesbians. While a lot of GLBT activists might think that's correct, it's hard to argue that 52 percent of California voters are gay-hating bigots who passed a law out of spite. And that is the core of the argument against the district court's ruling—that the preservation of marriage is a rational basis for Proposition 8. In essence, they argue, the district court selectively credited the testimony of anti-Prop 8 witnesses, and ignored the testimony of those supporting Prop 8. They argue that the Constitution cannot possibly be read to mandate states to accept gay marriages—because gay marriage did not exist at the time the Constitution or the Fourteenth Amendment was written.

But anti-Prop 8 forces believe that Prop 8 really is about bigotry; that it was motivated entirely by anti-gay animus and that Judge Walker simply called it like it is. For them, it's not a question of legalities, but of fundamental human rights. Gays and lesbians have the right to get married, and it's unconstitutional to deny them that fundamental human right.

Both sides have their arguments—but there's an even deeper question at stake. A single federal judge made a decision that overturns the will of the majority of Californian voters. The campaigns for and against Proposition 8 spent millions of dollars to convince voters to either ban or allow same-sex marriages. In the end, the supporters of same-sex marriages lost. The district court decision won't change the fact that a majority of Californians—and in most polls, a slim majority of Americans, oppose same-sex marriage. A federal judge can't order that people change their minds. No court can. Essentially, who is responsible for making important decisions about marriage? 

The real battle isn't in the courts, it's with the American public. A court ruling that mandates gay marriage over the will of the people will only harden opinions—just as Roe v. Wade turned abortion into a cultural wedge issue. The last thing we need is another decades-long fight over social issues.

What do you think: Should the legality of relationships be decided by judges?