Democracy Wheezes By
At times I am amazed and frightened at how slender a thread sustains our democracy and our culture. Wednesday, the Washington State Supreme Court, by a single vote, upheld the power of a democratic majority to make laws. By a single vote, the Washington State Supreme Courts allowed centuries of culture to prevail over the MTV culture. That democracy and culture should even be vulnerable to the capricious whims of nine judges is unnerving.
And as close as that single vote victory was, the majority made clear its dissatisfaction with both democratic majorities and cultural traditions. The majority cited the “clear hardship” that the Defense of Marriage Act (DOMA) imposed on homosexuals and invited the legislature to correct matters to the court’s satisfaction. Frankly, it read very much like a threat. The court seemed to be saying, “you fix it or we will.”
Democratic politicians seemed decidedly uncomfortable knowing full well that one of their wealthiest and most politically active special interest pressure groups would be demanding action during the next legislative session.
Senate Majority Leader Lisa Brown responded to the ruling with her finest Pontius Pilate impersonation: "Just as the public is divided over the issue, so is the Legislature." As good as that was, she was outdone by Governor Christina Gregoire who said: "The Supreme Court has ruled, and we must accept their decision whether we agree with it or not."
This is a tar baby neither wants to pick a fight with.
But even if the status quo manages to survive the next legislative session, the court’s majority lit an exploding cigar that could easily provide the next séance of the Supremes with the pretext to overturn the decision. Indeed, at least one phrase from the majority opinion is so bizarre that it almost invites a future court to throw the opinion out as the creation of lunatics.
Justice Barbara Madsen wrote for the majority that the Defense of Marriage Act "is constitutional because the Legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival."
Not even my fevered mind can imagine a scenario in which extending marriage rights to homosexuals would reduce the libido or fertility of heterosexuals.
At least one of the court’s dissenters made no attempt to conceal her contempt for majority rule. Justice Mary Fairhurst complained that, "Unfortunately, the (majority) are willing to turn a blind eye to DOMA's discrimination because a popular majority still favors that discrimination."
While I doubt that the majority considered public opinion polls before voting, Ms. Fairhurst’s sniffing disapproval for those who might consider majority opinion, such as legislators who will someday stand for election, is abundantly evident.
If the elected representatives of the people do not have the power to define marriage as a union between one man and one woman, then it also lacks the power to outlaw bigamy. It probably doesn’t even have the power to define marriage as a union between two members of the same species. One of those butchy Seattle man-haters could choose to marry her German shepherd so that she could put the dog on her health insurance. Treating hip dysplasia can get pretty expensive. Having to pay veterinary bills out of one’s own pocket could certainly qualify as a clear hardship.
I would love to hear Ms. Fairhurst explain how it could be that a legislature that lacks the authority to define marriage as a union between a man and a woman could still retain the authority to prohibit any of the preceding unions. Ms. Fairhurst might be disdainful of that broad majority of Washingtonians that would include people with dirt under their fingernails and Budweiser in their refrigerators, but she’s very mindful of the majority opinion of her manicured pals at the wine tasting parties and poetry readings she attends.
Courts have been shockingly contemptuous of democracy and culture on a number of occasions. Courts have ruled that taxpayers must shell out tax money to underwrite the irresponsibility of illegal aliens. Courts have erased parental sovereignty over families where abortion is concerned. We owe pornography to courts that have held that dirty pictures deserve more First Amendment protection than political debates.
So, it was no wonder that both sides of the homosexual marriage issue were surprised by the ruling. Nobody trusts courts to respect democracy.