In his latest
op-ed, William Kristol portrays the California Supreme Court's gay marriage decision as a case of an over-active judiciary overturning the will of the people:
On Thursday, the California Supreme Court did precisely what much of the American public doesn’t want judges doing: it made social policy from the bench. With a 4-to-3 majority, the judges chose not to defer to a ballot initiative approved by 61 percent of California voters eight years ago, which defined marriage as between a man and a woman.
What Kristol fails to mention is that, since that ballot initiative, the California legislature has enacted civil unions for gay couples, which include all of the legal benefits and responsibilities of marriage. The issue before the court was whether officially calling these arrangements "domestic partnerhsips" instead of "marriages" violated a provision against discrimination in the state Constitution of California. As it says plainly in
the opinion:
Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.
From what Kristol says, you get the impression that the decision substantively altered California's policy on gay marriage. In reality, though, the decision's impact was on semantics, not substance. So Kristol and other conservatives will continue to hold this up as an example of extreme judicial activism, when in fact there was very little of this so-called activism going on.
