Gerald Warner: Same-sex marriage thwarts democracy

The US Supreme Court's ruling on gay marriage is anti-democratic, says Gerald Warner. Picture: AP
The US Supreme Court's ruling on gay marriage is anti-democratic, says Gerald Warner. Picture: AP
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IN AMERICA “We the People” are now “They the Disfranchised”. Official notice of this reversal of constitutional precedent was served by the US Supreme Court in the second of two judgements handed down last week.

By a 5-4 decision the justices ruled that those who had sued to reverse a Californian district judge’s ruling that Proposition 8 – outlawing homosexual marriage – was unconstitutional “had no standing”.

The presumed effect of this ruling is that Proposition 8 has been overturned and California can resume marrying homosexuals. However, this case is complex and is likely to attract many more legal challenges. What sharply differentiates it from the innumerable other conflicts in the culture wars raging in America is that it involves a basic issue of democracy. More than 7 million Californians voted in favour of the proposition that “only marriage between a man and a woman is valid or recognised in California”; it was then endorsed by the California Supreme Court, but struck down by a Federal District judge.

The issue eventually reached the US Supreme Court but, since the government of the state of California had refused to support it, the justices ruled that the proponents of Proposition 8 did not have standing to pursue the case. Consider the implications of that sequence of events. A majority of voters pass Proposition 8: it is their democratic will. Yet, because a liberal state administration declines to support the verdict of its own electorate, the voters’ decision cannot be vindicated in the highest court in the land. You could not ask for a better example of the complicity between politicians and judges to frustrate the will of electorates. Behind the weasel legalities, in crude reality it is the voters of California who have no standing.

The US Supreme Court is a travesty. Because its nine members are appointed by the president, it is a given that “conservative” justices are nominated by Republican presidents and “liberals” by Democrat presidents. Its composition at any given time reflects the incumbency of the White House over recent years. Decisions related to moral or social issues can comfortably be predicted according to the current make-up of the bench. In recent years, the nearest thing to a wild card has been the relative unpredictability of Justice Anthony Kennedy, a “swing” voter.

What has such blatant partisanship to do with justice? What was the point of rejecting George III and awarding the US president the right of appointment to the highest court? Where is the separation of powers between executive and judiciary? Americans make a fetish of the Constitution but the fact is that so outdated a document can easily be subjectively interpreted by liberals or conservatives. How can the US Constitution be used to strike down “discrimination” when it was written by slave-owners for a slave-based society? The Supreme Court, today so self-consciously liberal, upheld slavery in its Dred Scott decision of 1857. Today, a recent New York Times/CBS poll showed only 44 per cent of Americans approve of the job the court is doing.

Judicial activism is by no means an American phenomenon. British judges have systematically eroded citizens’ rights and enhanced those of criminals in servile deference to Europe. At least the courts dismantling US democracy are American: we are in thrall to Europe and, through the same complicity of politicians and judges, subjected to the same agenda as Americans. Most notoriously, on 27 March 2012, the Council of Europe held its first ever closed conference, excluding the public, while the then UK “equalities minister” Lynne Featherstone pledged the implementation of same-sex marriage in Britain by June this year, after which Sir Nicolas Bratza, at that time President of the European Court of Human Rights, agreed the court would declare homosexual marriage a “human right” as soon as states such as Britain and France enacted it. Lord Stoddart, in the House of Lords, challenged the government to deny a newspaper report of this “conspiracy”, without rebuttal.

Transparency? Democracy? They are having a laugh. The EU equivalent of the US Supreme Court’s disdain for ballot-box decisions is the routine practice of ­requiring countries that have voted against any Eurofederalist encroachment to vote again until they come to the “right” decision.

Democracy was always a flawed concept: it inevitably leads to totalitarianism. While, however, the liberal elite’s contempt for democracy is increasingly shared by a public that recognises what a sham it is, it does not automatically follow that the public will acquiesce in the programme being imposed on it. What is wanted is a government that will dismantle the entire apparatus of politically correct laws and institutions, restoring independence to judiciary and citizens alike. That requires a determined exercise of political will by the populace, in Britain and abroad.

Twitter: @GeraldWarner1