Judges and Voters At Odds

JEFFERSON CITY, Mo. — The first week in August turned out to be a big news week in the debate over marriage.

In a primary with record high turnout, Missouri residents voted Aug. 3 against same-sex “marriage.”

Seventy-one percent of Missouri voters approved adding language to the state constitution reading, “To be valid and recognized in this state, a marriage shall exist only between a man and a woman.” The vote made Missouri the fifth state with a constitutional amendment prohibiting same-sex “marriage,” but the first to vote on one after a Massachusetts court gave unisex “marriage” a green light in the Bay State.

Marriage advocates were further bolstered by an Aug. 12 ruling in the California Supreme Court that voided the nearly 4,000 same-sex “marriages” performed in San Francisco this year. The court said the marriage licenses were issued illegally, since both legislation and a voter-approved measure define marriage as a union between a man and a woman.

Both supporters and opponents of the Missouri initiative credited churchgoers as a key factor in the win. “We were out-organized by the competition, which was able to do a lot of organizing with very little resources,” Seth Kilbourn, national field director for the pro-homosexual-marriage Human Rights Campaign, told reporters. “They activated the churches in a way that was very successful.”

“Even though we were outspent and we had a national political machine descend on our state to try and defeat this, people got out and worked and called neighbors and said a lot of prayers,” Vicky Hartzler, spokesman for the Coalition to Protect Marriage in Missouri told the New York Times.

But the day after the Missouri election, a Washington State judge ruled in favor of legalizing homosexual “marriage” in his state. The case before the court was brought by eight same-sex couples who want to marry. The Washington State decision will not go into effect until the state supreme court rules on it. If the ruling is upheld, Washington will become the second state — after Massachusetts — with legal homosexual “marriage.”

While Missouri is their real win, many advocates for traditional marriage see the developments in Missouri, Washington and California as overall positives, sending the signal that when left to democracy, marriage wins.

While Missouri is their real win, many advocates for traditional marriage see the developments in Missouri and Washington as overall positives, sending the signal that when left to democracy, marriage wins.

“The Missouri vote represents a watershed moment in the battle over gay marriage,” says Stanley Kurtz, a fellow at the Hoover Institution at Stanford University. “This was the first time the public has had a chance to speak since Massachusetts legalized gay marriage, and it came through loud and clear that the public does not support same-sex marriage.”

Homosexual “marriage” advocates, however, didn't credit popular wisdom. “This was part of an effort by President Bush to distract Missourians from the fact that the state has lost almost 80,000 jobs over the past three and one-half years,” Human Rights Campaign president Cheryl Jacques said in a statement. “The Missouri Constitution is now a tool for discrimination. This was motivated by politics, pure and simple. We recognize that many Missourians were opposed to this mistaken use of their constitution.”

Of the Washington decision, however, Jacques said, “This is a historic decision to end discrimination facing some Washington families. Same-sex couples pay taxes and contribute to society. There's no reason to deny any family the same rights and responsibilities as others.“ She continued, “Hopefully, someday very soon, all Washing-tonians will have the same rights that others have in fulfilling their American dreams.”

Trend in the Works

The Missouri vote followed a trend. As Austin Ruse of the Culture of Life Foundation in Washington, D.C., points out, “The margin of 70% is not surprising…when you look at similar measures and similar margins dating back to 1998.

“Hawaii passed a similar measure in favor of one-man/one-woman marriage with 69.2% of the vote. Alaska passed one in 1998 with 68.11% of the vote. Nebraska passed one in 2000 with 70.1%. Nevada passed one in 2002 with 67.1%,” Ruse said. “Yet, on the same day that Missourians voted overwhelmingly in favor of traditional marriage, a single judge imposed homosexual marriage on the people of Washington state. This is a very clear fight between the people and the elites.”

The Washington State ruling, too, followed a trend, the lead being set by Massachusetts. In his ruling, Washington's King County Superior Court Judge William L. Downing said, “In our pluralistic society, the moral views of the majority can never provide the sole basis for legislation.” He concluded that it “is not for our secular government to choose between religions and take moral or religious sides in such a debate.”

Downing wrote, “The legal question is not whether heterosexual marriage is good for the replenishment of the species through procreation. It is. The precise question is whether barring committed same-sex couples from the benefits of the civil marriage laws somehow serves the interest of encouraging procreation. There is no logical way in which it does so.”

Downing's opinion “is, even by the abysmal standards of the genre, the worst opinion favoring same-sex marriage ever,” says Gerard V. Bradley, professor of law at Notre Dame Law School. “The judge is so smug, so confident, so impressed with his own rhetoric and so sure he is smart that he has no idea his opinion is idiotic…meaning, it is a compendium of all the clichés, half-truths, question-begging assertions and tortured reasoning that can be found in” previous decisions addressing homosexual “marriage.”

November Coming

Democratic presidential candidate John Kerry of Massachusetts said after the Missouri vote: “We've always argued the states will be capable of taking care of this by themselves. Massachusetts and Missouri are proving they are capable of taking care of it by themselves. (That) I think bears out that we didn't need a (federal) constitutional amendment in order to do what's right.”

President Bush supports a federal marriage amendment. When the amendment was subject to a procedural vote last month, Kerry and his running mate, Sen. John Edwards of North Carolina, were the only members of the U.S. Senate absent for the vote. The Democratic candidate says he does not support homosexual “marriage” but does support civil unions.

Kerry voted against the federal Defense of Marriage Act in 1996, which sought to ensure that states would not be forced to recognize other states’ same-sex “marriages.” (The Defense of Marriage Act is being challenged in the federal courts and may eventually be struck down by the Supreme Court.)

Initiatives similar to Missouri's ban will appear on ballots in at least 10 states on Nov. 2: Arkansas, Georgia, Louisiana, Kentucky, Michigan, Mississippi, Montana, Oklahoma, Oregon and Utah. If the Missouri primary experience is any indication, in battleground states like Michigan and Oregon — where the presidential race is tight — homosexual “marriage” promises to affect the White House vote, by getting more ban supporters out to the polls.

Strategists are looking beyond November, too. The combination of the Missouri vote and the Washington court ruling “show that the same-sex marriage issue has resolved itself into a people-versus-courts dynamic,” says David Wagner, associate professor at Regent University's School of Law. “Voters reject it, courts order it. This shows that state constitutional amendments and the FMA are necessary. Judges are power-drunk with a concept of themselves as brave reformers destined for marble statues. The people have to get serious about taking them down a few pegs.”

“The case for FMA just became stronger in light of both these events,” says Matthew J. Franck, professor and chairman of political science at Radford University in Virginia. “First,” Franck said, “federal court intervention on behalf of gay marriage could come at any time, and state constitutional amendments will be no help then.

“Second, if voters in states like Missouri are so overwhelmingly in favor of defending marriage in their constitutions, surely they are not wedded to an abstract ‘federalism’ that says ‘no gay marriage here in Missouri but it's okay across the river in Illinois.’

“They have reasons for opposing gay marriage that would apply everywhere, and would probably cast votes for members of Congress and state legislatures on the basis of support or opposition to a federal marriage amendment if political leaders clearly placed that choice before them.”

Kathryn Jean Lopez is the editor of National Review Online.