Posted by
L Gravel on Friday, May 16, 2008 9:02:30 PM
The California Supreme Court, yet another judicial body proving itself adept at playing "Where's Waldo" with their state constitution, found therein the right to gay marriage. This is as good a time as any to recall Hamilton's words in
Federalist #78:
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. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
If only the court had mere judgment. Can we say it now? Long experience has shown that Hamilton underestimated the hubris of some and cowardice of others. We now live in a time when great deference is shown to our wise courts regardless of their reasoning. But the executive and legislative bodies would be considered radical indeed if they did not comply. (Though in this case those bodies certainly concur with the outcome, and are glad not to be held responsible by the voters.)
In any event, let us remind ourselves of the state's interest in marriage. It is not, as is widely touted, that the state should affirm the loving relationship between two consenting adults. For one, this is none of the state's business, and two, given the strong desires of the human heart, such adults really need no help from the state.
Rather, the state's interest in marriage is the protection of children. Children do best when they have a mom and a dad, bonded in stable marriage. Though this arrangement is not always possible for one reason or another, it is in everyone's interest that this ideal be encouraged, sanctioned, and celebrated. The diversity of other alteratives, though allowed in a free society, should not.
In the end, though I buy to some extent the argument that promotion of gay marriage will tear down and diminish traditional marriage, I think the cause and effect are more strongly seen in the reverse. Today in America we have an ever declining view of traditional marriage, and therefore there is not as much impetus to halt the sanction of gay marriage. Some day it may be that among cohabitating couples, gays alone will be the ones who bother to marry.