Arnold Schwarzenegger said an odd thing as he vowed to veto the bill that would make California the first state to recognize gay marriage by legislative action:
The Republican governor had indicated in previous statements that he would veto the bill, saying the debate over same-sex marriage should be decided by voters or the courts.
But in our republic, such momentous decisions are supposed to be made by legislatures, acting on behalf of the people. The idea of a representative democracy is that decisions are made one step removed from the passions of the people. And courts, in any rational system of governance, should arbitrate, not legislate.
Supporters of the bill accuse Arnold of pandering to evil, rightwing conservatives, but he's really pandering to a much bigger group. Californians voted for Proposition 22, which said, "Only a marriage between a man and a woman is valid or recognized in California." As far as Arnold is concerned, that's the end of it; the people have spoken. California is one of the states -- thank God Indiana isn't one of them -- that encourage mobocracy, the ability of the majority to stamp their feet and say they're just not going to take it anymore. One day they might decide to made carrots the state vegetable, and the next they might decide all redheads should be taken out and shot.
Arnold is, unfortunately, right that the issue will probably be decided in court -- rule by the elite, the opposite but equally troublesome path from rule by the majority. Civil unions are now recognized in Vermont and same-sex marriages in Massachusetts by judicial fiat. And Proposition 22 was aimed at stopping California from recognizing gay marriages authorized in other states. That conflicts with the full-faith-and-credit clause of the Constitution, which is why this issue will ultimately be decided by the U.S. Supreme Court. Just one more reason to pay attention to the confirmation hearings for John Roberts set to begin on Monday.
I confess to not having made up my mind on same-sex marriage. The time for civil unions, I think, has come. There is simply no reason to give numerous contractual rights to some couples and not to others. But gay marriage is a much bigger step, and I find the libertarian part of me and the conservative part of me at odds. On the one hand, state recognition of any marriage puts government and religion in bed together in a way we wouldn't accept on any other issue. On the other, marriage as the union of one man and one woman has been society's standard for all of time; that's a powerful thing to casually toss aside. On any given day, in a mobocracy, I would go one way or the other, based on which passion was controlling me.
That's why such issues belong in legislatures rather than courts or referendums. A legislature is the unit of government closest to the people, but not too close. Legislators can listen to the people, but then vote their own consciences and understanding of the legal and philosophical issues after long, vigorous and -- it is devoutly to be wished -- informed debate.
