Even the most prescient of public intellectuals can be mistaken as often as not. The trick is that—if you're going to be wrong—just try not to be very, very wrong.
To be fair, this was written almost exactly three years ago, before the metaphorical “cultural gunfire” was replaced by multi-engined manned missles and the crackle of the real thing. Perhaps Sullivan had half a point then: the nation had just been through the trauma of the unnaturally extended 2000 presidential election, and forces on both sides of the culture wars were simply exhausted. But the lull—if indeed it was one—could not have lasted, even if 9/11 had not abruptly changed the terms of the debate.
I will be returning to the culture war theme often in the next few months. Tonight, let's begin with perhaps the most obvious manifestation, brought to us courtesy San Francisco mayor Gavin Newsom.
Two judges delayed taking any action Tuesday to shut down San Francisco's same-sex wedding spree, citing court procedures as they temporarily rebuffed conservative groups enraged that the city's liberal politicians had already married almost 2,400 gay and lesbian couples.
The second judge told the plaintiffs that they would likely succeed on the merits eventually, but that for now, he couldn't accept their proposed court order because of a punctuation error.
It all came down to a semicolon, the judge said.
“I am not trying to be petty here, but it is a big deal … That semicolon is a big deal,” said San Francisco Superior Court Judge James Warren.
Uh-huh. That explains why he gave the city six weeks to respond.
A conservative group had asked Judge James Warren to immediately stop the wedding spree and void the 2,400 same-sex marriages performed in the city since Thursday, but instead he issued a non-binding cease-and-desist order and told the city to return on March 29 and explain its legal position. [emphasis added]
Newsom's justification:
Mayor Gavin Newsom last week ordered city officials to begin marrying gays and lesbians despite state statutes that limit marriage to “a man and a woman.” The mayor vowed Tuesday to continue performing the marriages until he was ordered to stop, raising the prospect that thousands more same-sex couples will hold marriage licenses by the time the legal battle returns to court.
“We are more resolved than ever,” Newsom said. “I took an oath literally to support the Constitution, and that's what I'm doing. The issue here is simple: The state's Constitution does not permit discrimination at all, anywhere, period. We are in full compliance with our state's equal protection clause prohibiting discrimination in any form.”
What are we to make of this argument? In 2000, Proposition 22—essentially California's Defense of Marriage Act—was approved by the overwhelming margin of sixty-one percent to thirty-nine. But as Jacob Levy points out, California initiatives are not exactly incorporated into the state constitution.
Statutory initiatives in California, which require only a majority rather than a supermajority vote, cannot be reversed by the legislature without subsequent voter approval of the reversal. This, it seems to me, makes them quasi-constitutional, or puts them into a curious middle ground between the state constitution and state legislation.
So Newsom is arguing that the consitutional equal protection clause trumps the collective will of the voters, as expressed by Proposition 22. But as Justice Warren observed—even while refusing to take any substantive action—the City of San Francisco is likely to lose on the merits.
Then again, maybe not: the Supreme Court of California could go the way of the Supreme Judicial Court of Massachusetts, which has of course mandated full gay marriage in that state by May of this year. And that court neatly arranged for its dictates to be fulfilled in such fashion that neither the legislature nor the citizenry could do anything to stop them, as a state constitutional amendment cannot even be put before the voters until November 2006.
The Massachusetts decision isn't judicial activism; it's judicial tyranny. But Newsom and company don't even have the veneer of a court's authority to support their claims. Even so, they are in no legal jeopardy: despite their brazen flouting of state law, they will almost certainly suffer no personal penalty, even if their cause loses in the end. Call it civil disobedience on the cheap.
(Just imagine the uproar if the cause was fetal rights, instead of gay marriage, and the mayor were to claim that the equal protection clause meant that abortion services could no longer be offered within the city: more than likely, he would be in jail, or at the very least relieved from his duties, before week's end.)
Over to Stanley Kurtz:
If the gay marriage question is resolved, not only by four liberal justices in Massachusetts, but by a campaign of civil disobedience in California and around the nation, conservatives face defeat on a whole range of issues. Americans oppose gay marriage by a two to one margin. The people of California voted decisively just four years ago to define marriage as the union of a single man and woman. If four activist judges in Massachusetts and one rebel mayor in San Francisco can overturn the legal definition of marriage-against the strong sentiment of the nation as a whole-then there will never be any issue on which activist judges fear to disregard either law or majority opinion. If the public gives up on this issue without a fight, then the battle against socially liberal activist judges is effectively dead.
Conservatives, however, are not the only ones who ought be concerned. Andrew Olmstead—who is personally in favor of gay marriage—gives a similar perspective on what is at stake. (via Donald Sensing.)
Once upon a time, the United States was described as a nation of laws, not of men. But that was a long time ago, and it went by the boards in the 20th century as courts began deciding what was legal based on personal beliefs rather than what was written, and Congress and the President stepped aside and let the courts do as they will. So it shouldn't be too surprising that the government of San Francisco has taken the next logical step. After all, letting same sex couples marry is the right thing to do. Why should such issues as the law get in the way of doing what's right? […]
People always have marvelous rationalizations for why they need to take power and force others to do their bidding. How about health care, for example? Surely providing universal health care is a wonderful goal, right? Making sure that everyone in the country has access to the finest medical care would be a great thing. So what if it requires taking liberty away from some people? It's for the greater good, after all, and who are you to stand in the way of the greater good. But we can't do it at the local level. We need the power of the federal government. And so, like a cancer, the federal government's power has expanded to its present dimensions, to the point where school uniforms are a federal issue.
As I said, this is all great as long as the government is doing what you like. I doubt the majority of citizens in San Franscisco really are overly concerned that their government is breaking the law, because they favor the cause in which it's being broken. As for the others…well, you can't make an omelet without breaking some eggs.
Only one small problem. Once we give the government the power to ignore the rules, it's easier for it to do so again. And again. Maybe they'll keep acting in ways in which you approve. But once they can take away some people's freedoms, your own is nothing more than a plaything for their amusement. They may let you keep it, they may not. But you'll have no control over it.
Our self-appointed civil libertarian watchdogs never tire of portraying John Ashcroft as the forerunner of some new Reich. Yet the true threat is not from the Justice Department, which after all serves under the President and hence is subject to the voters' approval every four years. Olmstead is correct: whether by negligence or by plan, over the last century our executive and legislative branches have allowed their authority to be steadily eroded by the judiciary. If we do not draw a line in the sand, here and now, the next time may well be too late.
“The Constitution … meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
—Thomas Jefferson (1804)
Prescience, indeed.
UPDATE: Over on NRO, Harvard law student Adam White describes how the much-maligned Bush appellate court nominee William Pryor is standing against judicial activism of both the left and right.
UPDATE 022004: The President has given Pryor a recess appointment to the 11th Circuit Court of Appeals.
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