In California, the people—right, wrong, or indifferent—have spoken. What the Supreme Court needs to think about as it considers California’s Proposition 8, which bans gay marriage in that state, is whether the people are sovereign or the Court presumes to be.
Justice Anthony Kennedy, in questioning lawyers defending the Proposition, pointed out that the children of gay parents have voices that ought to be heard. And so they should. When they’re adults, those 40,000 children (compared with the 10 million, or so, adult Californians who already have spoken in that referendum) can spearhead a new Proposition that would reverse Prop 8. The people, after all, can change their minds. That’s also easier to accomplish than getting the Supreme Court to reverse itself, even on an opinion with which they’ve interfered with the 10th Amendment.
Justice Sonia Sotomayor, also questioning lawyers defending Prop 8, asked why California had an interest in denying gay couples the right to marry. But this is to misunderstand the role of the Federal government in a Republic whose social compact has a 10th Amendment. The Federal government—and so the Supreme Court as the pinnacle of a branch of that government—has no interest in why a state wants to do a thing, a thing that does no harm to its neighboring states or to the United States, within its own borders.
The only legitimate ruling for the Court is to let the people’s decision stand. And leave California, in competition with those other states whose citizens have determined otherwise, to live with the consequences of its choice. That’s simply an application of Saul Alinsky’s Rule 4.
