The public reaction to today’s California Supreme Court ruling on gay marriage in that state has exposed a disturbing misinterpretation of the role of the judiciary in American society.
I am not a legal expert, but I was exposed to the ideas that I’m about to espouse by experts.
First of all, the judiciary is limited to “interpreting the constitution.” Your definition of “interpreting” is invariably linked to your personal politics, but the first admission one must make is this: Proposition 8, the proposition banning same-sex marriage, is no longer a Proposition. It is constitutional law in California. (That is to say, in California, it is now legal to discriminate based on sexual orientation. Now you know my politics!)
It would seem that, when one accepts this fact, the conclusion is forgone — until the case reaches federal courts, any state court in California must uphold the amendment. There are no compromises to this — the California courts are bound to uphold the constitution of the state.
But still, people are appalled that such a forward thinking state could be so ass-backwards. The state is not the problem; the problem is the people who voted to pass the Proposition.
Well then, one might say, can’t the courts invalidate the will of the people? The answer is yes, and the consequences are usually disastrous. The courts are essentially powerless if they don’t have the backing of the people. (However, the invalidation of [major] state laws usually occurs in the federal courts. Again, state courts are limited to interpreting their constitutions, and if [a certain classification of] discrimination is written in those documents, their hands are tied.)
Take Brown v. Board of Education. The landmark U.S. Supreme Court desegregation case from Kansas was unanimously decided, but Eisenhower was queasy about enforcing it. The South decided to give the Court the finger — schools in the South weren’t integrated until Nixon came along (!!!). Only after Congress threatened to revoke funding from segregated schools did the South comply with the ruling.
It’s impossible to use the courts as an instrument of social change. While they may be the final arbiters of the law, their power is not in the affirmation of justice — it is in the denial of injustice. And unfortunately, the people of California have decided that it is entirely just to deny certain people the “right” to marry.