Courts should not decide

I was an active supporter of the NZ civil unions legislation, and am also a supporter of gay marriage. I think it is also inevitable within a generation or less.

AP report at Stuff:

A US federal appeals court has declared California’s same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for likely consideration by the US Supreme Court.

A three-judge panel of the 9th US Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the US Constitution when he declared in 2010 that Proposition 8 was a violation of the civil rights of gays and lesbians.

I think this is a bad decision. While I disagree with their decision, the people of California voted in a referendum to ban same-sex marriage through a state constitutional amendment.

The way to legalise gay marriage should be winning a future vote on the issue, not having three Judges over-turn a referendum.

The argument of course is that gay marriage is a constitutional right, under the Bill of Rights. I don’t agree. I think it is something that should be legal, and should be allowed. But I do not think it is a constitutional right, just as I don’t think abortion is either.

Again – don’t get me wrong. I support laws which make abortion safe and legal. But these should be determined by legislatures or voters – not a handful of judges.

One reason for this is that you have massive ongoing resentment, when judges determine things, rather than the people. Take for example giving women the vote. This was done by way of constitutional amendment. The result is that no one alive in the US seriously disputes that women shouldn’t have the vote.

But if the Supreme Court had not waited for the law to be changed, and had by themselves declared women have a right to vote (and of course they do), that decision would probably be as contentious today, as Roe v Wade is.

I do support the courts being able to strike down laws which conflict with basic human rights. But I think this is a power that should be used rarely and when there is almost no other option. Otherwise one should try and achieve change through the democratic process of electing Parliaments and referenda.

We’ve shown in NZ you can do it that way.  Several states in the US have allowed gay marriage through the democratic process. That is how the issue should be resolved in California, not by the courts.

As it happens, the issue will now head to the Supreme Court of the US. I pick a reversal by at least 6-3.