California’s Proposition 8 and the Double-Edged Sword of Judicial Activism

The Los Angeles Times ran an interesting story last week analyzing why Proposition 8 passed in California. Among other things, the story highlights the strategy by Proposition 8 supporters of trumpeting the alleged long-term effects of allowing gay marriage above and beyond the fact of the marriages themselves,

They were able to focus the debate on their assertion that without the ban, public school children would be indoctrinated into accepting gay marriage against their parents’ wishes, churches would be sanctioned for not performing same-sex weddings and the institution of marriage would be irreparably harmed.

Supporters of gay marriage, along with political leaders including Sen. Dianne Feinstein (D-San Francisco) and the state’s superintendent of public instruction, denounced those messages as scare tactics, but they were not able to sway voters. Preliminary returns showed Proposition 8 passing 52% to 48%.

Repeatedly opponents of Proposition 8 said the idea that courts would force churches to perform same sex marraiges was absurd. But is it really any more absurd that a future court might require churches to perform same sex marraiges than it was that the California Supreme Court found a right to gay marriage in the state’s constitution to begin with?

After all, at one time it was probably considered absurd that courts would require Catholic charities Catholic Charities of Sacramento to cover birth control for their employees, but in 2004 the California Supreme Court ruled that, in fact, they were legally obligated to do so.

Or switch the positions here. In 2004, Michigan was one of 11 states that passed ballot initiatives banning gay marriage. One of the arguments that opponents of that ban made in Michigan was that the ban would have far-reaching effects including making it illegal for government agencies to offer health care benefits, etc. to domestic partners of gays and lesbians. Proponents of the ban ridiculed that claim and said all the initiative would do was ban marriage.

But in 2007, the Michigan Court of Appeals ruled that all domestic partner benefits (whether for heterosexual or homosexual couples) was unconstitutional under the marriage ban language, and earlier this year the Michigan Supreme Court agreed.

That’s the problem with this wave of judicial activism, whether it be for conservative or liberal purposes — it creates a great deal of uncertainty so that claims that a piece of legislation will or will not have a specific effects are largely meaningless.

Would the California Supreme Court require churches to marry gay couples? Almost certainly not, but who is to really say in an era of judicial activism on all sides.