In the 78th Federalist Paper, Alexander Hamilton wrote this about the judiciary under the new, proposed Constitution:
"Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them."
Which goes to show that our Founding Fathers, smart as they were, were not always right. And which brings me to the recent decision by the California Supreme Court that same-sex couples have the right to be "married" under the California constitution.
Among the interesting things about this decision is how far it went, and what risks it took, to, in some ways, accomplish so very little. California already had, through its law establishing domestic partnerships, provided same-sex couples with all the state law rights and privileges that married people had, except the name. But the court found this, perhaps particularly this, was unconstitutional discrimination against same-sex couples.
What risks did it take, you ask? Let me explain by way of an example. In the 1970s and early 1980s, different paths were taken on two issues. In 1973, the Supreme Court, in Roe v. Wade, announced that abortions during the first six months of a woman’s pregnancy could not be prohibited. A woman had a constitutional right to an abortion.
Later that decade and early into the next, there was a battle royal over a proposed Equal Rights Amendment to the United States Constitution. While most of the arguments about the ERA related to matters like women in the military, some people opposed the ERA for a different reason: We were afraid that if the ERA were passed, equal rights would become an issue to be decided by the courts, instead of by the legislature and executive and the people who elected them to office.*
Thirty-some years on, abortion is as controversial today as it was in 1973, if not more so. Equal rights for women, though, is an issue that, to a large extent, has come, been accepted and gone on its way. We don’t fight over equal rights any more. Maybe around the edges, here and there, arguments pop up now and then. But nothing like abortion.
Now some of this difference is probably because the issues are different. Abortion and equal rights are not the same. But some of the difference is, I believe, a result in how the issues have been handled.
With the decision in Roe v. Wade, the Supreme Court took the issue of abortion away from the legislatures and the people. Abortion became an issue of black and white. You were on one side or the other. There was no chance for a compromise here and an adjustment there. There was no opportunity to talk about the issue in the cneter. There was no opportunity to come up with a policy that could be acceptable to a majority in the center.
On the other hand, once the Equal Rights Amendment failed, equal rights for women was left to the legislature and the executive. Instead of everything being black and white, there were "shades of gray" discussions. There were compromises, and as feelings changed, the compromises changed, too. And over the years, while we may not have come all the way, equal rights have pretty much been accomplished, and for the majority of Americans the debate is over.
Sadly, that is not what happened with abortion. And now, with decisions like the one by the California Supreme Court, I fear the issue of same-sex marriage may go the way of abortion instead of the way of equal rights.
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* In 1977 I wrote an article on the Equal Rights Amendment that was published in Human Events. It was actually a fairly decent article, and the arguments I made against the ERA are, I think, still valid today on the issue of the proper roles of the judiciary on the one hand and the political branches of government, the legislature and the executive, on the other hand. It follows this post.
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